Opinion
B165343.
11-12-2003
FRANK TAYLOR, Plaintiff and Appellant, v. LAW OFFICES OF BROOKENS AND ASSOCIATES, et al., Defendants and Respondents.
Frank Taylor, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents.
Plaintiff and appellant Frank Taylor (Taylor) sued his former attorneys, defendants and respondents Armand Thruston (Thruston) and Larry Brookens, doing business as the Law Offices of Larry Brookens and Associates (Brookens). After Taylor presented his evidence at a court trial, the defendants moved for and obtained judgment in their favor. On appeal, Taylor asserts trial court bias and errors related to the denial of his motion for summary judgment, the withdrawal of his trial counsel, and the defendants alleged failure to comply with local rules. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND[]
We took judicial notice of the superior court file by order dated May 21, 2003.
Taylor, represented by Thruston and Brookens, sued his former employer for discrimination and received a monetary settlement. Taylor then hired attorney Austen Pell (Pell) and on June 6, 2001, filed the instant action against his former attorneys, claiming that they had committed professional negligence, intentionally inflicted emotional distress, and breached their fiduciary duties to him while representing him in the employment discrimination action.
In January 2002, the trial court scheduled the trial for June 24, 2002, and the final status conference for June 11, 2002.
During the course of the litigation, Taylor and his counsel experienced what Pell described as "a complete breakdown of the attorney/client relationship." On February 15, 2002, Pell filed a motion to withdraw as counsel. At the April 3, 2002 hearing on Pells motion to withdraw, the trial court found that Taylor, although present in court, had not been given proper notice of the hearing. The trial court told Taylor that if Taylor opposed Pells motion to withdraw, the motion would be denied without prejudice. Alternatively, if Taylor consented to the withdrawal, the court would grant the motion. Because Taylor opposed the motion to withdraw, the trial court denied it without prejudice. The court advised Taylor to hire new counsel, stating that it would likely grant a withdrawal motion that was properly noticed and served.
As the trial court anticipated, Pell soon refiled his motion to withdraw. Pell served Taylor with a new motion on April 18, 2002, and filed it on April 24, 2002. The hearing was scheduled for May 28, 2002.
On April 22, 2002, Taylor—personally, not through his counsel of record—filed a motion for summary judgment to be heard May 23, 2002. As of the May 23 hearing, Taylor had not signed a consent to substitution of counsel, nor had Pells second motion to withdraw yet been heard. The trial court explained to Taylor that he could not rule on the summary judgment motion because represented parties may not conduct litigation personally. The court said, "[Y]ou opposed his motion to be relieved as your attorney of record so I denied the motion, and he remains your attorney of record. [¶] . . . [¶] Theres an easy way to resolve that problem. Theres a form called `substitution of attorney that you can substitute him out and you in. You need his signature and yours [—] or you can have him refile the motion."
Pells motion to withdraw was granted by the court on May 28, 2002, over what appeared to be Taylors continuing opposition. At the withdrawal motion hearing, Taylor asked when his summary judgment motion would be heard. The court reminded Taylor that his motion had not been properly filed and said, "[I]f and when there is some other motion thats on calendar, properly, I will rule on it." Taylor said, "So I have to resubmit the summary judgment? You told me at that time you had not made a decision on the summary judgment." The court responded, "I abstained [from] ruling on it because you cant file a motion in your own name when you have an attorney that represents you." Taylor said, "But, Your Honor, you said in this court on April 3rd—the record shows you already claimed you would give the defendant [sic] his release if he, again, asked for it." The court explained, "Thats right. When you were here, you opposed the earlier motion to be relieved. I denied it because you opposed it because the notice that was given at that time wasnt proper. And I told you it would be inevitable hes going to be relieved as your attorney. That doesnt mean at the time you were the attorney of record."
On June 11, 2002, the date set for the final status conference, Taylor complained that the defendants had not complied with a local rule concerning the exchange and filing of certain trial-related documents before the final status conference. The trial court noted that the final status conference had been scheduled more than ten days before the trial date—in violation of the same local rule. The court rescheduled the final status conference for June 18, 2002, and ordered the parties to comply with the local rules applicable to the final status conference.
On June 18, 2002, Taylor refiled his motion for summary judgment—with a hearing date of June 20, 2002—and appeared for the final status conference. Taylor asked the court whether his summary judgment motion would be heard on June 20, 2002. The court responded, "I dont have an opinion for that. If youve set it for hearing on Thursday the 20th after making an appointment with the clerk and giving proper notice to everyone as required by the statutes, then I would say yes. If you havent done any one of those things, then I would say its not on calendar for Thursday." There is no indication in the record of a hearing being held on June 20, 2002.
The trial was trailed from June 24, 2002, to July 1, 2002. On June 26, 2002, Taylor filed a motion to renew his summary judgment motion, with a hearing date of July 1, 2002. On July 1, 2002, the court denied Taylors motion to renew his summary judgment motion and began the court trial. After Taylors opening statement, the defendants moved for a nonsuit. The trial court granted a nonsuit on the cause of action for intentional infliction of emotional distress.
Taylor examined Brookens and Thruston on July 2 and 3, 2002, marked several documents for identification, and then rested. The defendants then orally renewed and argued what the minute order refers to as their motion for nonsuit, but which appears to have been a motion for judgment in a court trial as authorized by Code of Civil Procedure, section 631.8, subdivision (a). The trial court granted the motion.
On July 24, 2002, the trial court denied as moot and untimely another motion by Taylor to renew his summary judgment motion. Judgment for the defendants was entered on August 23, 2002, and notice of entry of judgment was served on Taylor on September 9, 2002. Taylor filed a timely notice of appeal.
DISCUSSION
I. Trial
Taylor does not challenge the sufficiency of the evidence supporting the judgment, nor could he successfully do so on the partial record he submitted. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Taylors sole argument concerning the trial is procedural, and reads, in its entirety, as follows: "How can the Defendants win a Nonsuit motion at Trial on July 3, 2002, without Trial? Preparation papers having been filed with [the] court prior to the Defendants [sic] initial Nonsuit Motion being denied."
The "preparation papers" are points and authorities submitted by the defendants with the nonsuit motions made after Taylors opening statement on July 1, 2002.
Contrary to Taylors assertion, the judgment granted on July 3, 2002, was not without a trial. The minute order of July 3, 2002, reflects that the trial court granted judgment for the defendants after Taylor presented evidence and rested his case. The defendants were entitled to request judgment in their favor at that juncture. (Code Civ. Proc., § 631.8, subd. (a) ["After a party has completed his presentation of evidence in a trial by the court, the other party . . . may move for a judgment"].)
II. Alleged Pretrial Errors
Taylors remaining arguments provide no basis to reverse the judgment. The California Constitution permits reversal of a judgment only if, "after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Prejudice is not presumed, but must be affirmatively demonstrated by the party seeking reversal. (Code Civ. Proc., § 475; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) Taylor has not demonstrated any error in the pretrial proceedings, nor has he made the required showings of prejudice and the probability of a more favorable outcome at trial.
A. Withdrawal of Counsel
Much of Taylors argument concerning his former trial counsel, Pell, concerns issues neither relevant to nor cognizable on this appeal, such as his dissatisfaction with Pell, the ways in which he believes that Pell breached the retainer agreement, and whether the retainer agreements provision that counsel could withdraw for good cause had been satisfied. We consider only the arguments pertinent to this appeal. Taylor argues that: (1) Taylor had no obligation to consent to Pells withdrawal or sign a substitution of attorney form; (2) the court abused its discretion when it permitted Pell to withdraw; (3) the court did not follow the proper procedures with respect to the motion to withdraw; and (4) the court contradicted itself at the hearing on Pells first motion to withdraw when it stated that Pell would remain Taylors attorney but that Pell would be permitted to withdraw if he properly filed and served his withdrawal motion.
We review the ruling on a motion to withdraw for an abuse of discretion. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) In his declaration supporting his motion to withdraw, Pell stated, "[B]asic differences in opinion between attorney and client on how the case should be prosecuted have made it impossible for me to continue representing Mr. Taylor in this matter. On January 21st at approximately 11:00[ ]a.m. Mr. Taylor and I had a meeting in my office to try and resolve these differences. The meeting escalated into an argument that resulted in the police being called." The trial court did not abuse its discretion in concluding that a disagreement so severe as to require police intervention demonstrated "an irreparable breakdown of the working relationship between counsel and client" (id. at p. 1135, citation omitted) sufficient to warrant withdrawal.
This declaration belies Taylors claim that Pell "never . . . showed any evidence to the court why it should grant his release."
Taylor is correct that he was not obligated to consent to Pells withdrawal. Code of Civil Procedure section 284, however, provides for the withdrawal of counsel either by consent or by court order upon application by the client or by counsel. Pell moved to withdraw, and thus Taylors consent to the withdrawal was not required.
Taylor argues that the trial court granted Pells motion to withdraw without following unspecified "correct procedures." He appears to argue that the trial court did not adequately protect his "property interest" in the retainer agreement when it permitted Pell to withdraw. We have reviewed the proceedings with respect to the motions to withdraw. We note that the trial court denied the initial motion because notice to Taylor was insufficient, and then later permitted withdrawal when a second motion was properly filed and served. We discern no procedural failures and no compromise of Taylors property rights by the court.
Taylor also claims the trial court "contradicted itself when it stated the Appellants attorney of record (Mr. Pell) would remain the Appellants attorney . . . . Yet, before the hearing had concluded the Lower court stated the Appellants attorney of record would be released if the attorney of record filed it [a motion to withdraw] properly." The court denied Pells first motion to withdraw without prejudice because of insufficient notice. Anticipating, accurately, that Pell would refile the motion, the court advised Taylor to find new counsel because the motion, if properly noticed and served, would be granted. There were no contradictions, and no errors, in these statements.
B. Denial of Taylors Summary Judgment Motion
Taylor argues that he was entitled to summary judgment and that the trial court erred by refusing to rule on his summary judgment motion. Even if the court had erred by declining to rule on Taylors motion for summary judgment—or by erroneously denying the motion—such an error would not require reversal. When a party unsuccessfully moves for summary judgment on the ground that no triable issue of fact exists and the same factual questions are subsequently decided against the moving party at trial on the merits, any error in failing to grant the summary judgment motion is harmless. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836; South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 907-908.)
The trial court did not err, however, when it did not hear Taylors April 22, 2002 motion for summary judgment because Taylor was represented by counsel. Taylor had refused on April 3, 2002, to permit Pell to withdraw—causing Pells first motion to withdraw to be denied—and Pell remained Taylors attorney until the trial court granted his second motion to withdraw on May 28, 2002. It has been established law in California since 1865 that "[a] party to an action may appear in his own proper person or by attorney, but he cannot do both. If he appears by attorney he must be heard through him . . . . So long as he remains the attorney of record the Court cannot recognize any other as having the management of the case. If the party for any cause becomes dissatisfied with his attorney the law points out a remedy. He may move the Court for leave to change his attorney . . . . Until that has been done, the client cannot assume control of the case." (Board of Commissioners of the Funded Debt of the City of San Jose v. Younger (1865) 29 Cal. 147, 149; In re Barnett (2003) 31 Cal.4th 466, 478 [noting the "established rule in California that represented parties in civil matters must act through their counsel"].) Although Taylor could not be compelled to consent to Pells withdrawal, neither could he refuse to release his attorney and simultaneously act as his own counsel by personally filing documents in the litigation.
Taylor incorrectly asserts that he already represented himself when he moved for summary judgment because he: (1) had been released from his retainer agreement by Pells purported breach of contract; and (2) assumed self-representation at the same April 3, 2002 hearing at which he successfully opposed Pells withdrawal motion. An alleged breach of the parties contract, however, does not alter Pells status as Taylors attorney of record, and attorneys of record may not be replaced orally or by implication. Substitutions of attorney must be accomplished as set forth in Code of Civil Procedure section 284: either with the consent of both parties, filed with the clerk or entered upon the minutes, or by court order upon application by the client or by counsel. (People ex rel. Dept. of Pub. Wks. v. Hook (1967) 248 Cal.App.2d 618, 623-624; Epley v. Califro (1958) 49 Cal.2d 849, 854.) Neither of these events had occurred when Taylor filed his motion for summary judgment or when the motion came before the court on May 23, 2002. Thus, Taylor was represented by counsel at all times pertinent to his summary judgment motion, and the trial court properly declined to rule on it.
C. Los Angeles County Superior Court Local Rules, Rule 7.9
Taylor asserts that the defendants violated Los Angeles County Superior Court Local Rules, former rule 7.9 by failing to exchange and file certain documents within a specified time prior to the final status conference on June 11, 2002. But when the parties appeared on June 11, 2002, the trial court rescheduled the final status conference because it had been scheduled for a date earlier than that permitted by the local rules. Taylor does not contend that the defendants failed to comply with local rules in connection with the final status conference on June 18, 2002. Taylor has not established that the trial court erred, much less that he suffered substantial injury and that a different result would have been probable in the absence of the alleged error. (Code Civ. Proc., § 475.)
D. Alleged Bias
Taylors claims that the court was biased and "punished [him] four different ways on the same issue" are not supported by the record. The trial court properly denied Pells first motion to withdraw, did not abuse its discretion when it granted Pells second motion to withdraw, and correctly ruled that Taylor could not move for summary judgment while represented by counsel.
The court did not "force[] [Taylor] to decide between having already paid a $5,000.00 retainer to his attorney of record who no longer want [sic] to represent the Appellant and who have [sic] asked the Lower Court to release him, or whether to represent himself to try and win the case, despite the fact, he already rejected releasing his attorney." On this record, any difficulties of Taylor appear to have been caused not by the trial court but by Taylors refusals to consent to his counsels inevitable withdrawal and to seek new counsel despite an approaching trial date. Taylor is not exempt from legal rules because he elected to proceed in propria persona. "[S]tatus as a party appearing in propria persona does not provide a basis for preferential consideration. A party proceeding in propria persona `is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] Indeed, `"the in propria persona litigant is held to the same restrictive rules of procedure as an attorney." [Citation.]" (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs.
We concur: GRIGNON, Acting P.J. and ARMSTRONG, J.