Opinion
D074728 D075506
01-27-2020
JOHN A. DELISI, Plaintiff, Cross-Defendant, and Respondent, v. ALLAN WAGNER, Defendant, Cross-Complainant, and Appellant.
Allan Wagner, in pro. per., for Defendant and Appellant. Hamilton & Associates, Ben-Thomas Hamilton, and Michaele M. Gonzalez for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed on January 27, 2020, be modified as follows:
1. On page 16, at the end of footnote 15, add the following paragraph:
In a petition for rehearing, Wagner argues without any record references that, because he mailed his opposition on December 7, 2018—i.e., one week before the December 14, 2018 noticed hearing—he timely filed his opposition. Even if we were to credit what Wagner tells us regarding the December 7 mailing, he is not entitled to relief. Section 1005, subdivision (b) required Wagner to have filed and served his opposition "at least nine court days" before the hearing—i.e., no later than December 3, 2018. Thus, as a matter of law, Wagner's opposition was untimely by at least four days; and because Wagner's opposition was at least four days late, the trial court was justified in considering Delisi's motion "unopposed."
2. On page 19, at the end of the sentence on line 14, add the following footnote, which will require renumbering of all subsequent footnotes:
In a petition for rehearing, Wagner argues that the evidence in support of Delisi's motion for summary judgment "d[id] not credit Wagner for additional amounts . . . paid" and that "the Court of Appeal has not ruled on this issue of the amount of damages[.]" Because Wagner failed to properly dispute any of Delisi's undisputed material facts in the trial court—which includes Delisi's showing of damages—Wagner forfeited appellate review of this fact-based argument.
3. On page 21, at the end of the sentence on line 11, add the following footnote, which will require renumbering of all subsequent footnotes:
A cancelled file stamp does not invalidate otherwise valid service, and there is no requirement that a party re-serve an otherwise properly served motion just because the motion was initially rejected and later accepted without change. Wagner's attempt to tie filing to service is misguided and without authority, since for summary judgment motions, "[section] 437c is silent concerning when the notice and supporting papers must be filed." (Weil, et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 10:83, p. 10-34.) On May 31, 2018, Delisi timely served Wagner regardless when Delisi filed the documents, and Wagner does not suggest (and the record on appeal does not support an inference) that Delisi filed a motion different than the one he timely served on Wagner.
There is no change in judgment.
Appellant's petition for rehearing is denied.
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00017668-CU-BC-CTL) APPEALS from a judgment and a postjudgment order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. Allan Wagner, in pro. per., for Defendant and Appellant. Hamilton & Associates, Ben-Thomas Hamilton, and Michaele M. Gonzalez for Plaintiff and Respondent.
John A. Delisi provided legal services to Allan Wagner pursuant to a written agreement. In these consolidated appeals, defendant and cross-complainant Wagner appeals from a final judgment and a postjudgment order in favor of plaintiff and cross-defendant Delisi. The judgment included orders granting (1) Delisi's 2018 motion for summary judgment on Delisi's complaint against Wagner for attorney fees and costs owed under the contract for legal services, and (2) Delisi's 2015 motion for summary judgment on Wagner's cross-complaint against Delisi for negligence. In a postjudgment order, the trial court awarded Delisi attorney fees and costs incurred in prosecuting his complaint and in defending Wagner's cross-complaint.
The appeal from the judgment (No. D074728) and the appeal from the postjudgment order (No. D075506) were consolidated after oral argument in the appeal from the judgment. (No party requested oral argument in the appeal from the postjudgment order.) The two sets of records on appeal and two sets of briefs have been considered together in this consolidated appeal.
To the extent Wagner has not forfeited appellate review of the issues he raises, he has not met his burden of establishing reversible error. Accordingly, we will affirm both the judgment and the postjudgment order.
I. INTRODUCTION
This is the second time this case is before us on appeal. In an October 2017 opinion, as between Delisi and Wagner, we reversed a summary judgment and two postjudgment orders that had been granted in favor of Delisi. (Delisi v. Wagner (Oct. 25, 2017, mod. on den. rehg. Nov. 16, 2017, D069634) [nonpub. opn.] (Delisi I).) In Delisi I, we reversed the grant of a summary judgment in favor of Delisi on his complaint for unpaid fees and costs because he had not met his initial burden of producing evidence of a prima facie showing of the amount of damages he claimed. (Delisi I, supra, D069634.) As we explain, on remand, Delisi presented, and the trial court granted, Delisi's renewed summary judgment motion as to Delisi's complaint—a motion that overcame the errors that resulted in the reversal in Delisi I. Following entry of judgment, Delisi again moved for an award of attorney fees as part of his costs, based on an attorney fees provision in the written agreement for legal services between the parties, which the court also granted.
In Delisi I, the parties failed to provide many of the exhibits they lodged with the superior court despite available procedures under California Rules of Court, rule 8.224, and a courtesy call from the appellate court clerk's office regarding submission of trial court exhibits. (Delisi I, supra, D069634.) In the present appeal, Delisi has not done much better. Despite having included as part of the clerk's transcript three separate notices of lodgment (in support of a motion for summary judgment and two motions for attorney fees and costs), he failed to ensure that, at a minimum, the important exhibits were transmitted to (or copies lodged with) the appellate court—including but not limited to a copy of the written agreement on which the judgment and the two attorney fee awards were based.
All subsequent rule references are to the California Rules of Court, unless indicated otherwise.
As he did in Delisi I, Wagner represented himself in both the trial and appellate courts. We repeat what we said in Delisi I, supra, D069634: "The procedural rules apply the same to self-represented parties as to parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444 [self-represented parties 'entitled to the same, but no greater, consideration than other litigants and attorneys'].)" Just as in Delisi I, however, Wagner's briefing in the present appeal fails to follow basic appellate procedure, and we repeat from Delisi I that such failures have consequences: " 'Statements of fact that are not supported by references to the record are disregarded by the reviewing court.' (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 (McOwen), citing . . . rule 8.204(a)(1)(C) ['Each brief must [¶¶] [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.'].) To the extent that a party's argument is thereafter unsupported by sufficient facts, we deem the argument to be forfeited. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 28 [(Stover)].)" (Accord, Fierro v. Landry's Restaurant Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5 (Fierro) ["appellate courts may ' "disregard any factual contention not supported by a proper citation to the record" ' " and may " ' "ignore" ' factual statements without record references"]; Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 514 (Shenouda) [" ' "[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived." ' "]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589 (Alki Partners) ["An appellant who fails to cite accurately to the record forfeits the issue or argument on appeal that is presented without the record reference."].)
Both of Wagner's opening briefs contain a "Statement of the Case" and a "Statement of Facts" without any record references. Similarly, with few exceptions, in the presentation of his arguments on appeal, Wagner fails to cite to evidence in the record when describing what he contends happened—both before and after the filing of the underlying lawsuit. Accordingly, we have disregarded these, and all other nonconforming, presentations insofar as reciting the underlying facts (Fierro, supra, 32 Cal.App.5th at p. 281, fn. 5; McOwen, supra, 153 Cal.App.4th at p. 947) and reaching the merits of certain arguments on appeal (Shenouda, supra, 27 Cal.App.5th at p. 514; Alki Partners, supra, 4 Cal.App.5th at p. 589; Stover, supra, 12 Cal.App.5th at p. 28).
To the extent Wagner's substantive arguments contain accurate record references to evidence, we have considered such evidence in determining the merits of the arguments.
II. FACTUAL BACKGROUND
Before we set forth the facts, we first explain that, since different issues are reviewed differently on appeal, we must review the evidence in the record differently depending on who presented it during which proceeding. A. Wagner's Appeal from the Judgment
" 'Because this case comes before us after the trial court granted . . . motion[s] for summary judgment, we take the facts from the record that was before the trial court when it ruled on th[ose] motion[s].' " (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.) Thus, in Wagner's appeal from the judgment, we consider all the evidence in the two summary judgment motions, liberally construing and reasonably deducing inferences from Wagner's evidence, resolving any doubts or conflicts in the evidence in Wagner's favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)
All subsequent statutory references are to the Code of Civil Procedure unless indicated otherwise.
In his declaration in opposition to Delisi's motion for summary judgment on Delisi's complaint, Wagner did not present evidence, as opposed to argument and legal conclusions, that contradicted Delisi's evidence of facts in support of the elements of his causes of action for breach of contract and a common count. Similarly, in his response to Delisi's separate statement of material facts, Wagner did not cite to evidence; instead, he asserted argument and legal conclusions and cited to unauthenticated documents lodged with the trial court. B. Wagner's Appeal from the Attorney Fees Order
In Wagner's appeal from the postjudgment order awarding attorney fees and costs, we view the evidence "in the light most favorable to [Delisi], who prevailed below, and . . . resolve all conflicts in the evidence in favor of the [order]." (Reeves v. City of Burbank (1979) 94 Cal.App.3d 770, 776 [appeal from order awarding statutory attorney fees].) This standard makes little difference in the present appeal, however, because as we explain at part III., post, Delisi presented the only evidence that was properly before the court when it ruled. C. Statement of Facts
Delisi, an attorney, represented Wagner, the client, in Wagner's dissolution of his marriage. This retention was reflected in a written agreement dated March 18, 2008, and entitled "CONTRACT FOR LEGAL SERVICES" (the Contract). Among other terms, the Contract provided that Wagner would pay an initial retainer and that the legal services would be "charged against this retainer" based on an hourly rate for Delisi's professional staff and the costs advanced. The Contract required Delisi to send Wagner a monthly bill itemizing the current services rendered, any credits applied, and the balance due. In an addendum to the Contract, the parties agreed that, to satisfy any balance due, Wagner would pay monthly "[i]nstallment amounts" of $200. The parties also agreed: "If suit is filed or mediation initiated to enforce the collection of fees or costs in this case, the losing party shall pay reasonable attorney's fees and court costs."
In or around July 2012, Delisi withdrew from representing Wagner. Thereafter, Wagner ceased making the required monthly payments on a regular basis. As of the end of February 2014, the outstanding balance on Wagner's account was $31,147.17.
Wagner testified that "Delisi's services were not as described in the Contract . . . . He was negligent in many ways[.]"
III. PROCEDURAL BACKGROUND
In June 2014, Delisi sued Wagner for $31,147.17, the outstanding balance due under the Contract after a $200 payment in February 2014. Delisi alleged two causes of action—one for breach of contract and the second, a common count, for work, labor, services, and materials rendered at Wagner's request. Wagner answered the complaint, admitting all of Delisi's allegations except damages, pleading that "[d]amages of $31,147.17 . . . are not substantiated by payment terms as detailed in [the C]ontract[.]" Wagner also asserted a number of affirmative defenses, including Delisi's negligence.
Wagner filed a cross-complaint against Delisi, asserting one cause of action for general negligence and alleging damages as a result of Delisi's representation of Wagner in the dissolution of Wagner's marriage. We know from Delisi I, supra, D069634, that "the operative pleading is a May 2015 third amended cross-complaint" in which Wagner alleged various causes of action against Delisi and sought "damages of $88,275" (Cross-complaint). (Italics added.) Neither party has included a copy of the Cross-complaint or Delisi's answer to the Cross-complaint in the record on appeal.
In the Cross-complaint, Wagner also asserted additional claims against an additional party. (Delisi I, supra, D069634.) Neither those claims nor that party is at issue in this appeal.
In September 2015, the trial court granted Delisi's motion for summary judgment on Wagner's Cross-complaint against Delisi. The court ruled that section 340.6's one-year statute of limitations barred Wagner's claims against Delisi.
In January 2016, the trial court granted Delisi's motion for summary judgment on Delisi's complaint for unpaid fees and costs against Wagner. Wagner's appeal from the final judgment that followed these two (and various other) orders resulted in Delisi I, in which we reversed the judgment "because Delisi did not meet his initial burden of producing evidence of a prima facie showing that there are no triable issues of material fact as to the amount of damages to which he was entitled" on his complaint against Wagner. (Delisi I, supra, D069634.) We did not reach any issues or arguments related to the September 2015 grant of summary judgment in favor of Delisi on Wagner's Cross- complaint or the merits of the postjudgment orders granting Delisi prevailing party attorney fees and costs based on an attorney fees provision in the Contract. (Ibid.)
Following the issuance of the remittitur in Delisi I, Delisi again moved for summary judgment on his complaint or, in the alternative, summary adjudication of each of the causes of action. Delisi argued that Wagner breached the Contract by failing to make the required monthly payments of $200. The evidence Delisi submitted in support of his motion included the Contract, a description of the services provided and the related fees and costs generated, and an explanation of Delisi's attorney-client relationship with Wagner. Delisi presented this evidence by way of his declaration, a request for judicial notice, and a notice of lodgment that contained eight exhibits referred to in the declaration and the request. In addition, Delisi submitted a separate statement of 12 undisputed material facts that set forth each material fact followed by a reference to the supporting evidence—in compliance with section 437c, subdivision (b)(1), and rule 3.1350(d) & (h).
In part, section 437c, subdivision (b)(1) requires that the papers in support of a motion for summary judgment "shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." (Italics added.)
In part, rule 3.1350(d)(1) requires that a moving party's separate statement of material facts in support of a motion for summary judgment identify each cause of action that is the subject of the motion and identity "[e]ach supporting material fact claimed to be without dispute." In part, rule 3.1350(d)(3) requires that a party's separate statement of undisputed material facts in support of a motion for summary judgment be in the two-column format specified in rule 3.1350(h) and that "the undisputed material facts in the first column" be "followed by the evidence that establishes those undisputed facts in that same column." (Italics added.)
Wagner filed written opposition to Delisi's motion. He argued, first, that Delisi did not properly serve the motion and, second, that there were triable issues of material fact. The evidence Wagner submitted in support of his opposition included his declaration, a request for judicial notice, and a notice of lodgment of 23 exhibits. Wagner also submitted a document entitled "Plaintiff's [sic] Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment . . . ." (Some capitalization omitted.) In addition to being mislabeled—i.e., the document was defendant Wagner's response to plaintiff Delisi's separate statement of undisputed facts—the document fails to comply with section 437c, subdivision (b)(3), and rule 3.1350(f) & (h), which set forth the requirements for an opposing party's response to a moving party's separate statement. More specifically, Wagner's response does not indicate whether Wagner agrees or disagrees that each of Delisi's material facts is undisputed and, more importantly, does not provide a reference to the supporting evidence on which Wagner relied. Finally, while not a procedural violation, Wagner's response did not include "any other material facts" that Wagner contended "are disputed." (§ 437c, subd. (b)(3); see rule 3.1350(f)(3).)
In part, section 437c, subdivision (b)(3) requires that an opposition to a motion for summary judgment "shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed" and that, for each material fact the opposing party disputes, "a reference to the supporting evidence" that establishes the dispute. (Italics added.)
In part, rule 3.1350(f)(2) requires: that a party's response in opposition to a separate statement of undisputed material facts be in the two-column format specified in rule 3.1350(h); that the response "unequivocally state whether [each] fact is 'disputed' or 'undisputed,' "; and that, "on the right side of the page directly opposite the fact in dispute," the opposing party "describe the evidence that supports the position that the fact is controverted." (Italics added.)
Without leave of court and after the deadline for filing an opposition to a summary judgment motion (§ 437c, subd. (b)(2) ), Wagner filed a supplemental memorandum of points and authorities and a supplemental declaration. Because the record on appeal does not contain an order authorizing these untimely filings (see fn. 8) or an indication that the trial court considered them, we disregard them on appeal.
"An opposition to the [summary judgment] motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (§ 437c, subd. (b)(2).)
In reply, Delisi presented evidence and argument that he properly served Wagner with the motion for summary judgment and that there were no triable issues of material fact. Delisi filed a memorandum of points and authorities, a declaration, a reply to Wagner's response to Delisi's separate statement of undisputed material facts, and evidentiary objections to much of the evidence and argument presented by Wagner. Delisi's reply to Wagner's response to Delisi's separate statement was the same as to all 12 undisputed material facts: "This fact remains undisputed. [¶] [Wagner's] response does not attempt to dispute this material fact. [¶] There is no admissible evidence before this Court to dispute this material fact. See evidentiary objections filed by [Delisi]."
Without leave of court and after the deadline for filing a reply to an opposition to a summary judgment motion (§ 437c, subd. (b)(4) ), Delisi filed a "supplemental reply memorandum" (capitalization omitted). In response, again without leave of court and well after the deadline for filing an opposition to a motion for summary judgment (§ 437c, subd. (b)(2); see fn. 8, ante), Wagner filed an "additional supplemental opposition," a "response to Delisi's [reply]," and a "declaration in support of response to Delisi's [reply]" (capitalization omitted). As before, because the record on appeal does not contain either an order authorizing these untimely filings (see fns. 8 & 9, ante) or an indication that the trial court considered them, we disregard them on appeal.
"A reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (§ 437c, subd. (b)(4).)
In mid-August 2018, the trial court heard oral argument and took the matter under submission. Thereafter, the court issued an order granting Delisi's motion for summary judgment, granting in part and denying in part Delisi's request for judicial notice, and sustaining in part and overruling in part Delisi's evidentiary objections. Based on the evidence of damages Delisi presented in support of his motion—namely, 60 months of nonpayment of the $200 Wagner agreed to pay each month—the court awarded "$12,000 in unpaid and due installment payments, plus interest from the date that each payment became due."
The parties have not provided a reporter's transcript of the oral proceedings.
Although the order indicates the ruling is on "Defendant's"—i.e., Wagner's—request for judicial notice, based on the exhibits identified in the order, in fact the court was ruling on Delisi's request for judicial notice. The order does not contain a ruling on Wagner's request for judicial notice.
On September 24, 2018, the trial court entered a final judgment (Judgment). The Judgment recited the September 2015 order granting Delisi's motion for summary judgment on Wagner's Cross-complaint and the August 2018 order granting summary judgment on Delisi's complaint and ruled as follows: On the complaint, judgment is entered in favor of Delisi and against Wagner "in the amount of $12,000.00 plus interest accruing from the date each $200.00 installment payment was due"; on the Cross-complaint, judgment is entered in favor of Delisi and against Wagner, who "shall take nothing by way of the Cross-[c]omplaint"; and Delisi "is the prevailing party in this action and shall recover" from Wagner attorney fees and costs in amounts to be determined.
Neither party provided a copy of the Judgment in the appeal from the Judgment. However, because we consolidated Wagner's appeal from the Judgment (No. D074728) with Wagner's appeal from the postjudgment order (No. D075506) (see fn. 1, ante ), the record on appeal now contains a copy of the Judgment.
In late August 2018, prior to entry of the Judgment, Wagner appealed from the order granting Delisi's motion for summary judgment on the complaint. In response to this court's order questioning appellate jurisdiction (see Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7 [an order granting summary judgment is not appealable]), Wagner advised that he was appealing from the September 2018 Judgment, and we allowed the appeal to proceed.
Meanwhile, in the trial court, Delisi filed two postjudgment motions for attorney fees and costs—one for the fees and costs he incurred in prosecuting his complaint against Wagner, and one for the fees and costs he incurred in defending Wagner's cross-action against him. Delisi brought the motions pursuant to Civil Code section 1717, based on the attorney fees provision in the Contract and the trial court's ruling in the Judgment that Delisi was the prevailing party in the action and entitled to recover fees and costs from Wagner. In support of the motion, Delisi presented declarations from his trial counsel which set forth the amounts of time, the hourly rates, and the costs advanced, as well as copies of the monthly invoices.
"In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney's fees in addition to other costs. [¶] . . . [¶] Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. . . ." (Civ. Code, § 1717, subd. (a).)
Four days prior to the noticed hearing on Delisi's motions, the court issued the following tentative ruling: Delisi's "unopposed" motions are granted in part and denied in part; "[a]s the prevailing party, [Delisi] is entitled to recover his fees under his contract with [Wagner]"; "[t]he hourly rates for the attorneys and paralegals are reasonable"; the services rendered by the professionals "are reasonable and necessary"; and Delisi is awarded $20,353 with regard to the cross-action and $88,495.50 with regard to the complaint.
Later that same day—which was seven days past the deadline for the filing and service of an opposition to Delisi's noticed motions (§ 1005, subd. (b) [written oppositions to motions required "at least nine court days" prior to hearing])—Wagner filed an "opposition statement" to Delisi's postjudgment motions. Wagner argued that Delisi's motions were "untimely" because Wagner's appeal from the Judgment stayed all proceedings in the trial court and that the motions "disregard[ed]" Delisi I because the " 'triable issues of material fact with regard to the amount . . . of Delisi's alleged damages' " found in Delisi I still "remain". In addition, Wagner "reserve[d] the right to critique, submit opposition refuting the allegations, and tax costs" on the basis that Delisi's motions contain "numerous specious assertions and questionable costs."
On the date of the noticed hearing in December 2018, the court entertained argument from both Delisi (through counsel) and Wagner. Following the hearing, the court entered an order confirming—and repeating verbatim—the tentative ruling (Attorney Fees Order). Thus, as relevant to this appeal, the court considered Delisi's postjudgment motions "unopposed" and awarded Delisi a total of $108,848.50 ($20,353 on the cross-action plus $88,495.50 on the complaint).
The record on appeal does not contain a reporter's transcript of the proceedings.
The record does not indicate that the trial court ever considered, or that Wagner asked the court to allow, his untimely "opposition statement." Under circumstances like those presented here—i.e., where the trial court exercised its discretion based on the record before it at the time of the ruling (see pt. IV.B., post)—Wagner forfeited appellate consideration of his late opposition. (See Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054-1055 (Roman) [appellate court reviews the propriety of the trial court's ruling based on the record before the trial court].)
Wagner timely appealed from the Attorney Fees Order.
After oral argument in Wagner's appeal from the Judgment, on our own motion we consolidated for all purposes Wagner's appeal from the Judgment (No. D074728) and Wagner's appeal from the Attorney Fees Order (No. D075506). (See fn. 1, ante.)
IV. DISCUSSION
The trial court's Judgment and Attorney Fees Order are each presumed correct, and Wagner, as the appellant, has the burden of establishing reversible error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) As we explain, Wagner has not met his burden in this appeal. A. Wagner's Appeal from the Judgment
We review de novo the grant of a summary judgment. (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) As a practical matter, " 'we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.' " (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124.) A motion for summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c); Biancalana, at p. 813.)
On both procedural and substantive grounds, Wagner has not established reversible error related to the Judgment.
Because Wagner's opening brief fails to cite to the record on appeal in support of what Wagner tells us are the Statement of the Case and the Statement of Facts, we have disregarded these portions of Wagner's opening brief. (Fierro, supra, 32 Cal.App.5th at p. 281, fn. 5.) Applying this same standard, we have disregarded all statements of alleged fact contained in Wagner's various arguments, where such statements lack an accurate record reference (Ibid.; McOwen, supra, 153 Cal.App.4th at p. 947); and, to the extent such arguments lack a sufficient factual showing, we deem Wagner to have forfeited or abandoned them (Shenouda, supra, 27 Cal.App.5th at p. 514; Alki Partners, supra, 4 Cal.App.5th at p. 589; Stover, supra, 12 Cal.App.5th at p. 28).
1. Cross-complaint
Initially, Wagner raises no issue or potential error related to the September 2015 order granting Delisi's motion for summary judgment on Wagner's Cross-complaint against Delisi. Indeed, Wagner did not include in the record on appeal either the pleadings related to Delisi's motion for summary judgment on Wagner's Cross-complaint or the order granting the motion. Because " '[the appellant] has the burden of providing an adequate record[,]' " where " ' "the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." ' " (Jameson, supra, 5 Cal.5th at p. 609.) For these reasons, Wagner has not met his burden of establishing error related to the grant of summary judgment in favor of Delisi on Wagner's Cross-complaint.
To the extent Wagner's opening brief can be read to argue that, because Delisi I reversed the prior judgment, the order granting summary judgment on the Cross-complaint was also reversed (or otherwise adversely affected), Wagner is mistaken. Delisi I made no substantive rulings related to the Cross-complaint.
For the foregoing reasons, Wagner has not met his burden of establishing reversible error in the trial court's grant of Delisi's motion for summary judgment as to Wagner's Cross-complaint.
2. Complaint
As we explained in Delisi I: "A plaintiff like Delisi is entitled to a summary judgment on the basis 'that there is no defense to the action' (§ 437c, subd. (a)) only where the court is able to determine from the evidence presented 'that there is no triable issue as to any material fact and that the [plaintiff] is entitled to a judgment as a matter of law' (id., subd. (c)). Such a plaintiff has the ultimate burden of persuasion that there is no defense, and the plaintiff can meet this burden by proving each element of the cause of action. (Id., subd. (p)(1); Aguilar [v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,] 850, 853 [(Aguilar)].) [¶] As the moving party, the plaintiff bears the initial burden of production of evidence to make a prima facie showing that there are no triable issues of material fact as to each element of the cause of action at issue. (Aguilar, supra, 25 Cal.4th at p. 850.) If the plaintiff meets this burden, then the burden of production of evidence shifts to the defendant to establish the existence of a triable issue of material fact. (Ibid.) For purposes of analyzing each respective party's burden of production, there is a triable issue of material fact 'if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the [opposing party] in accordance with the applicable standard of proof.' (Ibid.)" (Delisi I, supra, D069634.)
In a summary judgment appeal with a complete record and a procedurally compliant opening brief, an appellant would argue, first, whether the respondent's initial showing establishes an entitlement to judgment as a matter of law on the complaint and, second, whether the appellant's responsive showing establishes a triable issue of material fact. (See Aguilar, supra, 25 Cal.4th at p. 850.) Here, however, appellant Wagner has neither disputed any of respondent Delisi's undisputed material facts nor identified any other material facts he contends are in dispute followed by a reference to supporting evidence as required by section 437c, subdivision (b)(3) and rule 3.1350(f)(2). (See fn. 7 and related text, ante.) Thus, Wagner does not suggest on appeal either that Delisi's initial showing was insufficient or that Wagner's responsive showing established a triable issue of material fact. The lack of such a showing normally results in a forfeiture of appellate review of the issue. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 ["Appellate courts need not address [fact-based] theories that were not advanced in the trial court"].) However, because "we review a summary judgment ruling under the same general principles applicable at the trial level, we must independently determine the construction and effect of the facts presented to the trial court as a matter of law." (Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 356, italics added; accord, Luke v. Collotype Labels USA, Inc. (2008) 159 Cal.App.4th 1463, 1468; Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 8:165, p. 8-146.)
To prove a claim for breach of contract, a plaintiff like Delisi must establish "(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; accord C.W. Howe Partners, Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 699.) We have independently reviewed the evidence cited by Delisi in support of the undisputed facts listed in the separate statement in support of his motion—in particular, the testimony in Delisi's declaration in support of the motion. In contrast to the showing in Delisi I, here we are satisfied that Delisi produced the required "evidence to make a prima facie showing that there are no triable issues of material fact as to each element of the cause of action at issue" as required by Aguilar, supra, 25 Cal.4th at page 850. (Delisi I, supra, D069634.)
Although Wagner did not challenge the undisputed facts proffered by Delisi (§ 437c, subd. (b)(3); rule 3.1350(f); see fn. 7 and related text), he does raise various legal arguments in his appellate briefing. As we explain, however, none is helpful to his appeal.
Wagner first argues that Delisi did not provide the statutorily required notice of the hearing on his motion for summary judgment on his complaint. In this regard, section 437c, subdivision (a)(2) requires 80 days' notice where service is effected by mail. On May 29, 2018, Delisi mailed Wagner the motion, all supporting documentation, and notice of a hearing to take place on August 17, 2018—80 days later. Wagner does not contend otherwise; indeed, in his opening brief, he expressly acknowledges that "Wagner was served . . . on May 29, 2018 . . . , which was exactly 80 days prior to the hearing on the motion, calendared by the court for Aug[ust] 17,[]2018." (Italics added.) Despite this admission, Wagner argues that, because Delisi did not file his motion and supporting documentation (including the proof of service) until June 4, 2018—which was fewer than 80 days prior to the date of the hearing—Delisi did not comply with the statutorily required notice. However, section 437c, subdivision (a)(2)—the statute on which Wagner relies—does not mention, let alone set a deadline for, the filing of the motion; the statute requires only service of the motion at least 80 days prior to the hearing. Delisi timely served Wagner with the summary judgment motion.
"Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. . . ." (§ 437c, subd. (a)(2).)
Wagner further argues that the trial erred by not applying the doctrines of res judicata and/or law of the case to deny Delisi's motion. According to Wagner, because the causes of action and the parties were the same in both Delisi I—in which we reversed the judgment—and Delisi's renewed motion for summary judgment, res judicata and law of the case precluded the granting of the renewed motion. However, Wagner forfeited appellate consideration of this argument, because he failed to properly raise it in the trial court in opposition to Delisi's motion in the first instance. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 818, fn. 36 [legal theory raised for first time on appeal following grant of summary judgment motion not considered]; Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 498, fn. 9 [same].) Although Wagner did argue for the application of res judicata in his "additional supplemental opposition" (capitalization omitted), because Wagner filed that document after the statutory deadline (§ 437c, subd. (b)(2); see fn. 8, ante) and there is no indication the trial court considered it, we have disregarded it. (Roman, supra, 237 Cal.App.4th at pp. 1054-1055.) In any event, Wagner misunderstands the potential application of both doctrines; as we explain, neither potentially applies here.
Claim preclusion, sometimes referred to as res judicata, " 'prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.' " (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823, italics added.) Here, there is no " 'second suit.' " Because there has been only one lawsuit (case No. 37-2014-00017688-CU-BC-CTL), claim preclusion does not apply.
The law of the case doctrine provides that any principle or rule of law stated in a final appellate court opinion that is " 'necessary' " to the appellate decision must be followed in all subsequent proceedings in the action, whether in the trial court or a later appeal. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 459, p. 515.) Under this doctrine, "the case may not go over ground that has been covered before in an appellate court" by way of final opinion. (Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495, 1506.) Here, with regard to Delisi's complaint, the only " 'necessary' " substantive ruling in Delisi I was that Delisi's initial factual showing in support of the motion for summary judgment did not establish that Delisi was entitled to judgment as a matter of law. (Delisi I, supra, D069634.) Delisi I did not result in a principle or rule of law that became the law of the case; the ruling in Delisi I was based on the specific evidence presented and the specific judgment requested in the underlying 2016 motion. (Ibid.) Here, Delisi presented evidence different from what we considered in Delisi I; and, consistent with that evidence, Delisi sought a judgment in an amount different from what we considered in Delisi I.
Next, Wagner argues that the trial court "disregard[ed] substantial evidence . . . submitted as exhibits . . . which refute Delisi's allegations[.]" In particular, Wagner criticizes the following portion of the trial court's ruling: "[Wagner's] response to [Delisi's] Separate Statement does not actually 'dispute' any of the factual assertions. Instead [Wagner] offers a narrative argument in response to each fact statement. In addition, the 'evidence' cited by [Wagner] does not support his asserted arguments." Wagner's arguments are difficult, at best, to understand. However, he presents nothing that affects our conclusion that—regardless of the admissibility of what Wagner contends is evidence he submitted in opposition to Delisi's motion—by failing to present this evidence in a form and format required by law, Wagner failed both to dispute what Delisi presented as undisputed material facts and to present other material facts Wagner contended were disputed. (§ 437c, subd. (b)(3); rule 3.1350(f)(2), (f)(3); see fn. 7 and related text.)
Finally, Wagner contends that the trial court erred in not considering his testimony as to Delisi's negligence in providing professional services. Wagner focuses on the following ruling of the trial court with regard to his claim that this evidence entitled him to an offset for the damages he suffered as a result:
"[Wagner] is not competent to present an opinion as to whether the attorney representation in the underlying action was proficient, or whether the fees and costs claimed were actually incurred. [Wagner's] lay opinion consists of speculation as to the quality of the underlying representation. Such speculation is not admissible.
Further, even assuming the correspondence lodged by [Wagner] is admissible, such communications do not establish a failure to adequately represent [Wagner], or a failure to prosecute the underlying dissolution [of marriage action]."On the record presented, we agree with the trial court.
In this regard, our Supreme Court has explained: "[T]he general rule applicable in negligence cases arising out of the rendering of professional services: ' "The standard of care against which the acts of a [professional] are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony . . . , unless the conduct required by the particular circumstances is within the common knowledge of the layman." . . .' . . . The 'common knowledge' exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson 'is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.' " (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, citations omitted [medical malpractice].) This rule applies in legal malpractice cases. (Yale v. Bowne (2017) 9 Cal.App.5th 649, 657, quoting Flowers, at pp. 998-999 ["legal malpractice actions in California are a subset of negligence actions in general and are governed by the rules of pleading and proof applicable to all negligence actions except to the extent 'the Legislature has statutorily modified, restricted, or otherwise conditioned some aspect of an action for malpractice' "]; Unigard Ins. Group v. O'Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239.)
In his opening brief on appeal, Wagner tells us that, within his trial court "opposition statement" to Delisi's motion, he cited "valid documentary evidence, undisputed by Delisi," including "a Family Court ruling to credit Wagner with excess spousal support paid," "Delisi's admission that Wagner paid excess rental fees," "statements by Delisi sent to [counsel for Wagner's former spouse] supporting Wagner's claim that conditions of the Marital Settlement Agreement were not met (transfers to [Wagner] of an eTrade account and Charger football season tickets were not completed)." According to Wagner, "Delisi failed to seek any of the above damages incurred by Wagner before withdrawing his representation of Wagner." For at least three reasons, we reject Wagner's citation to "valid documentary evidence."
Initially, because Wagner's record reference on appeal is to the first page of an "opposition statement" that consists of five separate documents containing 97 pages, Wagner forfeited appellate consideration of his argument by failing to provide accurate and necessary record references. (Shenouda, supra, 27 Cal.App.5th at p. 514; Alki Partners, supra, 4 Cal.App.5th at p. 589; Stover, supra, 12 Cal.App.5th at p. 28).
In the record on appeal, Wagner's "opposition statement" consists of a memorandum of points and authorities, a request for judicial notice, a declaration, a notice of lodgment (of 23 additional documents), and a response to Delisi's separate statement of undisputed material facts.
Moreover, even if Wagner had directed us to what he contends is his "evidence," because he did not cite it in his response to Delisi's separate statement of undisputed material facts—either to contest whether Delisi's facts are undisputed or to proffer additional facts in dispute (§ 437c, subd. (b)(3); rule 3.1350(f)(2); see fn. 7, ante)—we do not consider it on appeal. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-31 (North Coast) [" 'all material facts must be set forth in the separate statement. . . .' Thus, when the 'fact' is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court"].)
In any event, Wagner provides no authority—and we are aware of none—for the proposition that, without more, an attorney may not withdraw from representation before collecting payments or property from the opposing party that are subject to court orders the attorney obtained. Even after Delisi withdrew from representing Wagner in the marital dissolution proceedings, Wagner has not suggested why he, with or without new counsel, could not have sought the relief from his former spouse that he now claims as damages he suffered as a result of Delisi's prior representation.
Under a different point heading—namely, "4. Delisi's Breaches of Contract" (some capitalization omitted)—Wagner lists 10 alleged breaches of contract. To the extent Wagner contends that these alleged breaches are also negligent performance of the Contract, we do not consider them for at least three independent reasons: Wagner forfeited appellate consideration of his argument by failing to provide accurate and necessary record references of the facts in support (Shenouda, supra, 27 Cal.App.5th at p. 514); Wagner did not include the alleged facts and supporting evidence in his response to Delisi's separate statement of undisputed material facts (North Coast, supra, 17 Cal.App.4th at pp. 30-31); and, as the trial court ruled, expert testimony is necessary to establish breach of applicable standard of care as to each alleged breach.
Wagner refers us to Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1147, in which the court ruled that, where the evidence establishes the attorney's "numerous, blatant and egregious violations" of professional standards as prescribed by the Rules of Professional Conduct, expert testimony is not required to sustain a finding of negligence. (Day, at pp. 1147, 1146, 1149.) Again, Wagner does not suggest, let alone establish, what Rules of Professional Conduct he contends Delisi violated.
Wagner also argues that he did not need an expert to establish the " 'value of [Delisi's] services.' " (Quoting Ball v. Posey (1986) 176 Cal.App.3d 1209, 1215.) While Wagner may be correct in certain circumstances—and we express no opinion whether the services Delisi provided fall within these circumstances—he does not refer us to any evidence in the record as to what he contends the value of Delisi's services was.
For the foregoing reasons, Wagner has not met his burden of establishing reversible error in the trial court's grant of Delisi's motion for summary judgment as to Delisi's complaint. B. Wagner's Appeal from the Attorney Fees Order
An order granting attorney fees pursuant to a contractual provision and Civil Code section 1717 "is generally reviewed under an abuse of discretion standard, though determination of whether the criteria for an award have been met is a question of law which is reviewed de novo." (Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 905.)
Wagner argues on appeal that the trial court lacked jurisdiction to consider Delisi's motions for attorney fees. More specifically, Wagner contends that section 916 divested the trial court of jurisdiction, because at the times Delisi filed the motions and the court ruled on them, Wagner's appeal from the Judgment (No. D074728) was pending. We review this issue de novo.
"(a) . . . [T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.
"(b) When there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from." (§ 916.)
Contrary to Wagner's argument, "the filing of a notice of appeal does not deprive the trial court of jurisdiction to award attorney fees as costs post trial. Although a prevailing party at trial may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal. (Walsh v. New West Federal Savings & Loan Assn. (1991) 234 Cal.App.3d 1539 [finding contrary holding would conflict with statutory provisions requiring a prevailing party to move for attorney fees as an item of cost within a specified period of time after entry of judgment] . . . .)" (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368.) That is because "an award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken." (Id. at p. 369, citing § 916, subd. (a), quoted at fn. 19, ante; see Serrano v. Unruh (1982) 32 Cal.3d 621, 636-637 ["A statutory fee motion . . . is a collateral matter, ancillary to the main cause. . . . It 'seeks what is due because of the judgment' "], quoted in Lewow v. Surfside III Condominium Owners' Assn., Inc. (2012) 203 Cal.App.4th 128, 133.)
We do not reach the merits of any of Wagner's other arguments, however, because, as we explain, Wagner forfeited appellate review by failing to oppose Delisi's attorney fees motions in the trial court.
We reached Wagner's jurisdictional argument, because issues affecting the trial court's subject matter jurisdiction are never forfeited and may be asserted for the first time on appeal. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339.)
Seven days past the deadline for opposing Delisi's postjudgment motions for attorney fees (see § 1005, subd. (b))—which was after the trial court had issued a tentative ruling on the motions—Wagner filed an "opposition statement" to the motions. Although the tentative ruling and the opposition are both filed on the same date, we understand that the court's tentative ruling preceded Wagner's opposition, because the court's tentative ruling indicates that each of the rulings is on an "unopposed Motion." (Italics added.) After oral argument at which Wagner participated, the court confirmed its tentative ruling; and in its written order, the court again explained that it was ruling on two "unopposed Motion[s]." (Italics added.) Under such circumstances, as our Supreme Court explained more than 40 years ago:
The parties have not provided a reporter's transcript of the hearing.
" 'An appellate court will ordinarily not consider . . . erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver [or forfeiture] . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on
appeal when it could easily have been corrected[.]' " (Doers v. Golder Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.)Accordingly, to the extent Wagner raises nonjurisdictional arguments in his appeal from the Attorney Fees Order, we have not considered them.
For the foregoing reasons, Wagner has not met his burden of establishing reversible error in his appeal from the Attorney Fees Order.
V. DISPOSITION
The Judgment and the Attorney Fees Order are each affirmed. Delisi is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.