Opinion
A131801
12-28-2011
CHAUNCY BANKS, Plaintiff and Appellant, v. CARL F. SCHETTER, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCV 245857)
In this action for breach of contract, plaintiff Chauncy Banks appeals from the judgment of the trial court ruling in favor of defendant Carl F. Schetter. The court found plaintiff did not present sufficient evidence to prove his claim. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a businessman who retained defendant to represent him in connection with a discrimination case involving a leasehold for plaintiff's clothing business. An arbitration took place wherein the arbitrator ruled against plaintiff on his claims against the shopping mall wherein he had his business and from which he had been evicted.
On September 11, 2009, plaintiff filed a complaint against defendant. While the allegations are not entirely clear, the complaint appears to allege causes of action for negligence, violation of civil rights (42 U.S.C. §§ 1985, 1986), breach of contract, and legal malpractice. The gravamen of the complaint centers on defendant's alleged failure to properly represent plaintiff in the dispute against the shopping mall.
A bench trial in this matter was held on January 28, 2011. The record on appeal is incomplete, however, defendant indicated at the outset of trial that the trial court had granted his demurrer to several of plaintiff's causes of action without leave to amend, and that the only remaining claim was the one for breach of contract.
Defendant testified that he withdrew as plaintiff's attorney and that plaintiff signed a substitution of attorney form on November 3, 2006. He argued that the breach of contract claim referred to conduct that occurred after December 12, 2006, five weeks after the initial substitution form was signed. Defendant conceded that the form had not been filed with the court because he represented multiple parties in the underlying case and the court clerk required separate substitution forms for each client. Defendant then caused plaintiff to sign another substitution form which is dated December 12, 2006. He also testified that he had mailed in a request for trial de novo after the adverse decision on arbitration, but that the clerk denied she ever received it. A letter from the court clerk to defendant dated January 5, 2007, indicates that as of that date, the trial court deemed defendant to be counsel of record.
Defendant also argued that plaintiff would not have had a reasonable chance to prevail in the appeal from the arbitrator's decision because the decision was based on the fact that a second lease had not been signed and therefore could not be enforced. He further asserted plaintiff would be unable to prove any damages.
Plaintiff testified that after he lost the arbitration, defendant told him he had mailed a request for trial de novo to the court clerk, along with the motion to withdraw as counsel, but that the request for trial de novo was never filed and the arbitrator's award had been confirmed by the trial court. Eight months later, defendant moved to set aside the judgment. The trial court in that matter refused to set aside the judgment, allegedly because defendant had failed to timely request an order setting aside the judgment.
An appeal taken from this ruling was unsuccessful. (Banks v. Simon Property Group (Appeal No. A 120174) filed March 19, 2009.)
On March 24, 2011, the trial court in the present action filed its judgment after submission following trial. The court found the evidence offered by defendant regarding the date on which he substituted out of the underlying case was "equivocal at best." However, the court stated plaintiff had not sustained his burden to prove defendant was indeed still his counsel during the relevant time period and that the proffered substitution was either untimely or ineffective. Further, the court noted it was plaintiff's burden to demonstrate that he suffered damages for the alleged breach of the contract under Civil Code sections 3281 and 3282, and that he had "utterly failed to do so." Judgment was entered in favor of defendant. This appeal followed.
Civil Code section 3281 provides: "Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages." Civil Code section 3282 provides: "Detriment is a loss or harm suffered in person or property."
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DISCUSSION
Plaintiff's sole argument on appeal is that "public policy demands that the burden of proof must have shifted to [defendant] to prove that [his] failure to timely file an effective Substitution of Attorney did not cause [plaintiff] injury and damages." The argument fails.
" 'Burden of proof' means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 115.) "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting." (Evid. Code, § 500.) "The party claiming that a person is guilty of . . . wrongdoing has the burden of proof on that issue." (Evid. Code, § 520.)
In a breach of contract action, the plaintiff has the burden of proving the following elements: "(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.) In the context of an attorney-client relationship, the general rule is that an attorney's representation of a client ends when the client discharges the attorney or consents to a withdrawal, the court consents to the attorney's withdrawal, or upon completion of the tasks for which the client retained the attorney. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 887-888.)
In support of his argument that defendant bore the burden of proof in this action, plaintiff cites to National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336 (National Council), Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756 (Haft), and Harris v. Irish Truck Lines, Inc. (1974) 11 Cal.3d 373 (Harris). These cases are inapposite.
In National Council, supra, the Court of Appeal noted: "On rare occasions, the courts have altered the normal allocation of the burden of proof. [Citation.] The shift in the burden of proof from the plaintiff to the defendant rests on a policy judgment that there is a substantial probability the defendant has engaged in wrongdoing and the defendant's wrongdoing makes it practically impossible for the plaintiff to prove the wrongdoing. [Citation.] Thus, the normal allocation of the burden of proof has been shifted in spoliation of evidence cases [citation], negligence per se actions [citation], and product liability cases based on design defect [citation]." (National Council, supra, 107 Cal.App.4th 1336 at p. 1346, fns. omitted.) Here, in this relatively ordinary attorney-client dispute, there is nothing to suggest a "substantial probability" defendant engaged in wrongdoing or that his wrongdoing, if any, makes it "practically impossible" for plaintiff to prove the wrongdoing.
Similarly, in Haft, supra, the Supreme Court held the plaintiff must produce evidence of a violation of a statute and a substantial probability that his or her injury was caused by the violation of the statute before the burden of proof shifts to the defendant to prove the violation of the statute did not cause the plaintiff's injury. (Haft, supra, 3 Cal.3d 756 at p. 772.) And in Harris, supra, the Supreme Court held that a defendant who possessed a vehicle before and after an accident had the burden of proving brake failure was not caused by his or her failure to keep the brakes in good working order. (Harris, supra, 11 Cal.3d 373 at p. 378.) Neither case involves an action for breach of contract.
In the present case, we see no reason to diverge from the general rule that it is a plaintiff's burden to prove all the elements necessary to establish his or her cause of action against a defendant. There is nothing in the nature of a breach of contract action involving the effective date of an attorney's alleged withdrawal that makes it unduly difficult for a plaintiff to substantiate the allegations of his or her claim.
Regardless, it was most certainly plaintiff's burden to prove his damages. Plaintiff does not cite to any authority for the remarkable proposition that a defendant in a breach of contract action has the burden to prove a plaintiff has not suffered damages as a result of an alleged breach. While a defendant certainly may choose to affirmatively contest both causation and damages, the burden of proof remains on the plaintiff to substantiate his or her claims.
DISPOSITION
The judgment of the trial court is affirmed.
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Dondero, J.
We concur: ____________
Marchiano, P. J.
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Margulies, J.