Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, Elizabeth Grimes, Judge.
Ealise Crumb, in pro. per., for Plaintiff and Appellant.
Ussery & Associates and Bernard R. Ussery for Defendants and Respondents Cynthia McClain-Hill, Craig Cornwell, Ruth Chao, Nichelle Frelix, and McClain-Hill, Cornwell, Chao & Schropp.
No appearance on behalf of Defendants and Respondents Law Offices of James Schropp and James Schropp.
EPSTEIN, P. J.
Ealise Crumb appeals from a judgment in favor of defendants in this action for legal malpractice. First, she challenges the trial court’s rulings on her motions to compel production of the litigation files generated and maintained by her own attorneys in the underlying actions. We find no abuse of discretion, and therefore, no basis to reverse summary judgment or summary adjudication on this basis. Appellant also challenges the award of summary judgment to the respondents other than James A. Schropp and the Law Offices of James A. Schropp (the McClain-Hill respondents). Her complaint is based on three separate wrongs allegedly committed by the defendants in the malpractice action: (1) the failure to file an opening brief in the appeal from nonsuit in appellant’s action for race discrimination against her former employer, which resulted in dismissal of the appeal; (2) the failure to inform her that the defendant in that action had offered to waive a $150,000 fee award in return for dismissal of the appeal; and (3) the mishandling of medical liens in a separate and distinct action by appellant against the Metropolitan Transit Authority (MTA) for personal injuries.
We find no damages to appellant caused by the respondents’ failure to preserve her appeal because she presented no evidence of racial animus in the underlying race discrimination trial. Our first opinion in this matter, Crumb v. McClain-Hill, Cornwell, Chao & Schropp et al. (Nov. 26, 2003, B159678) [nonpub. opn.] (Crumb I), affirmed summary adjudication based on the failure to inform appellant of the waiver of fees, and that decision is now law of the case. Since no new evidence was presented relative to that point on this motion for summary judgment, we affirm on that basis. Similarly, in Crumb I, we found summary adjudication appropriate as to the third harm, the handling of liens in the MTA case. The law of the case doctrine also applies to that theory because no new evidence was presented on that point. For these reasons, we affirm summary judgment for the McClain-Hill defendants.
We find no error in the entry of judgment in favor of James Schropp and the Law Office of James Schropp because appellant announced that she was unable to proceed on the day of trial. The trial court did not abuse its discretion in denying appellant’s motion to continue the trial. We also conclude that appellant may not seek review of the order striking her statement of disqualification against the trial court judge because that issue is not cognizable in this appeal. The exclusive means of review is a petition for writ of mandate which must be filed within 10 days of notice of the trial court’s decision. Appellant did not file a petition for mandate. We find no violation of appellant’s right to represent herself.
FACTUAL AND PROCEDURAL SUMMARY
We take a portion of our factual and procedural summary from our opinion in Crumb I.
In April 1995, appellant hired respondent James A. Schropp, at that time a sole practitioner, to represent her in a racial discrimination action against her former employer, the law firm Haight, Brown & Bonesteel (Haight, Brown). Two months later, she retained Schropp to represent her in a personal injury action against the MTA. In December 1995, Schropp formed a partnership with respondents Cynthia McClain-Hill, Craig Cornwell, and Ruth Chao, entitled McClain-Hill, Cornwell, Chao & Schropp (McClain-Hill firm). Appellant’s case was transferred to the McClain-Hill firm, although we have found no record that a substitution of attorney was filed or a retainer agreement signed.
Appellant had a pending workers’ compensation claim against Haight, Brown when she consulted Schropp. She alleges she followed Schropp’s advice and dismissed that action so she could combine that case with her discrimination lawsuit. She delivered the files on her workers’ compensation case to Schropp.
Appellant states that the firm instructed her to retrieve files of her 1989 personal injury action against the Southern California Rapid Transit District from her counsel on that matter. She went with respondents Schropp and Cornwell to her former attorney’s office and picked up the files.
Appellant’s race discrimination case went to trial in October 1996. It resulted in nonsuit against her. Haight, Brown, as prevailing party, filed a cost bill which included a claim for costs and attorney fees in excess of $150,000. In January 1997, the McClain-Hill firm filed a notice of appeal on behalf of appellant. According to the allegations of the complaint, the McClain-Hill firm obtained several extensions of the deadline to file the opening brief in the appeal, all unbeknownst to appellant. While an extension was in effect, Schropp informed appellant that the McClain-Hill firm would dissolve in August 1997. He told her that her brief would not be impacted, and that it already was complete except for minor changes. Despite appellant’s repeated requests, she was never given a copy of the opening brief.
In November 1997, appellant telephoned the Court of Appeal and learned that her appeal had been dismissed in October 1997 because the opening brief had not been filed. Schropp’s motions for relief from default and for stay of issuance of remittitur were denied.
Appellant sued the McClain-Hill firm, Cynthia McClain-Hill, Craig Cornwell, Ruth Chao, and an associate of the firm, Nichelle Frelix (collectively McClain-Hill defendants or respondents) and James A. Schropp, and the Law Offices of James A. Schropp. Acting in propria persona, she alleged causes of action for legal malpractice, breach of contract, negligent and intentional infliction of emotional distress, misappropriation and commingling of funds, fraud, and violation of Business and Professions Code provisions governing the attorney-client relationship.
Respondents’ demurrers to the fifth cause of action (negligent infliction of emotional distress); sixth cause of action (intentional infliction of emotional distress); and ninth cause of action (violations of the Bus. & Prof. Code) were sustained without leave to amend and are not issues in this appeal.
After litigation commenced, appellant attempted to obtain the files maintained by respondents in the underlying actions. Respondents moved for summary judgment, or in the alternative, summary adjudication of issues. Based on appellant’s failure to respond to the undisputed material facts submitted by respondents in support of their motion, the trial court found the facts were undisputed and granted the summary judgment motion. Appellant filed a timely appeal from the judgment in favor of respondents.
In Crumb I, we rejected appellant’s argument that the trial court abused its discretion in denying her request to continue the summary judgment hearing so that she could conduct further discovery. We affirmed summary adjudication on the second and seventh causes of action. We also concluded the trial court erred in granting full summary judgment because the moving parties failed to negate an element as to the first, third, fourth and eighth causes of action. The case was remanded to the trial court.
On remand, appellant renewed her efforts to obtain the files generated by her attorneys in the underlying actions. We reserve our treatment of those efforts for our discussion of the issues on appeal.
In the meantime, respondents moved for summary judgment, or in the alternative, summary adjudication, on the remaining causes of action. In response, appellant took the position that the trial court’s denial of her efforts to obtain her client files made it impossible to respond to the motion. We discuss her response in more detail below. The trial court granted the motion and entered judgment for the McClain-Hill defendants. Appellant appealed from the judgment and order granting summary judgment.
Appellant’s action against Schropp and his firm remained active. She brought motions to compel further responses to interrogatories and for production of documents. She also moved to disqualify the trial judge, Elizabeth Grimes, for bias. In June 2005, appellant moved to continue the trial against the Schropp defendants because of Schropp’s failure to respond to discovery. She also anticipated that she would be required to have thyroid surgery. She sought to have the trial date continued from August 19, 2005 to January 9, 2006.
Judge Grimes filed a verified answer and order striking the motion to disqualify. She noted that the pleading was not personally served, nor was it served upon her clerk while she was in the courthouse, as required by Code of Civil Procedure section 170.3, subdivision (c)(1). She had not presided over the action since a hearing on July 19, 2004. Judge Grimes stated that she was on assignment with the Court of Appeal from August 16, 2004 through February 28, 2005, and during that period, the case load in Department 30 was handled by other judges, primarily Judges Kalin and Bigelow. She concluded that appellant’s contentions related either to the hearing on November 15, 2004 at which Judge Bigelow denied appellant’s fourth motion to compel production of her files, or to hearings held before Judge Grimes prior to July 19, 2004. Judge Grimes ruled that the motion was untimely under section 170.3, subdivision (c).
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Alternatively, Judge Grimes concluded that even if timely, the statement of disqualification presented no legal grounds for disqualification because it was based upon appellant’s opinion and dissatisfaction with rulings. Based on these conclusions, the statement of disqualification was stricken under section 170.4, subdivision (b).
Schropp did not appear at the hearing on appellant’s motions to compel discovery, which were granted with an award of sanctions against Schropp. The motion to continue the trial was denied. On August 29, 2005, appellant’s case against Schropp and his firm was called for trial. Appellant said that she was unable to proceed because she still did not have her client files from respondents. The trial court warned: “All right. Well, you know I’m going to then order the entry of judgment in favor of Mr. Schropp.” Appellant responded: “That’s fine, your honor, and I’ll just appeal.” The court entered judgment in favor of James A. Schropp and the Law Offices of James A. Schropp. We consolidated the appeal from the judgment in favor of Schropp (case No. B187157) with the appeal in favor of the McClain-Hill defendants (case No. B180758).
Schropp failed to prepare the judgment as promised. Appellant eventually prepared a judgment which was signed by the trial court.
DISCUSSION
I
A key issue on this appeal, as it was in Crumb I, is appellant’s position that she was unable to respond to the summary judgment motion and could not proceed to trial against Schropp because her efforts to obtain the files generated and maintained by her attorneys in the underlying actions had been thwarted by respondents and the trial court. Since the issue of appellant’s files is central to the issues on appeal, we provide a detailed review of the discovery efforts after remand.
A. Appellant’s Discovery Motions
Following remand after our decision in Crumb I, appellant filed another motion to compel which was opposed by respondents. Respondents presented evidence that they had tried and failed 16 times to deliver documents to appellant, who alternatively refused to pick up the documents or provide an address for their delivery. Respondents also stated that a copy of the appellate file for the Haight, Brown race discrimination trial, including both the clerk’s and reporter’s transcripts, had been sent by messenger to appellant’s former attorney, Boyd Lemon.
In his declaration in opposition to the motion to compel, Bernard Ussery, counsel for respondents, attached a March 4, 2002, letter written to appellant by his predecessor, Andrea Rice, detailing all the documents offered to appellant at no cost. The summary is 51 pages long. Rice said that the documents in category 1 of the itemized list had been picked up by appellant’s messenger on April 11, 2001. According to Rice’s letter, the category 2 and 3 documents had been delivered to Marilyn Brath, former counsel for appellant, but were returned to Rice’s office when Brath substituted out as counsel. Category 4 documents were first offered on January 28, 2002, at no charge. Appellant failed to respond to the offer and had not picked up the documents.
The trial court denied the motion on June 2, 2004, but sai
Rice’s March 4, 2002 letter concluded: “As you are well aware, the documents which have been offered to you include all civil litigation files in both your underlying discrimination and personal injury matters; all appellate file documents from your discrimination case; all deposition transcripts from your underlying discrimination case; all trial exhibits from your underlying discrimination case; all trial transcripts from your underlying discrimination case; all medical records from both your underlying personal injury case and your underlying discrimination cases; all of your available employment records; all available discovery documents in both of your underlying cases; and all available trial documents, including exhibits, motions in limine and jury instructions.”
d it would order the documents delivered to appellant and asked for an address for delivery. Appellant said she would pick them up. The court said: “No, you’re not. To what address do you wish to have them delivered?” Appellant said she did not have an address. The court said: “All right. Then don’t bring any more motions. This motion is denied.” On June 7, 2004, appellant accepted delivery of documents from respondents.
On June 18, 2004, appellant filed a new motion for return of files in the underlying actions. She sought “her original files” in the Haight, Brown race discrimination case (No. BC126019), the workers compensation case against Haight, Brown (No. VN0291445), the Haight, Brown appeal (Case No. B109549), her case against the MTA (No. BC147634), and her case against the Southern California Rapid Transit Authority (No. C0758649). Appellant asserted that the documents delivered by the respondents on June 7, 2004, consisted of eight small boxes, which were copied from the files maintained by counsel for Haight, Brown in the underlying action. She was not given the files maintained by her attorneys in that action. She also did not receive the appeals file in the Haight, Brown race case and the MTA personal injury case. Appellant went on to detail various documents missing from the files delivered by respondents. She supported her motion with a declaration which does not have the detail provided in her points and authorities.
Respondents opposed the motion to compel, and represented that “each and every one of Plaintiff’s documents” in their possession was delivered in eight bankers boxes on June 7, 2004. They noted that they could not speak for any documents in the possession of Schropp. Counsel for respondents filed a declaration stating “on information and belief” that Schropp continued to represent appellant after the dissolution of the McClain-Hill, Cornwell, Chao & Schropp firm. “On information and belief” counsel for respondent represented that Schropp retained possession of appellant’s case files. The same declaration states: “Also on information and belief, after the initiation of this lawsuit. Such a [sic] files as he had we delivered to Andre [sic] Rice, former counsel for the defendants.” This passage of the declaration does not make sense as written.
Counsel for respondents also declared that after he substituted in as counsel for respondents, he reviewed the files transferred to him by predecessor counsel Rice, “and separated out all documents in which the plaintiff had an ownership interest. These documents were delivered to plaintiff on June 7, 2004.” He did not explain the criteria used to determine appellant’s ownership interest. The trial court denied the motion to compel on July 19, 2004, and awarded sanctions of $1,137.50 against appellant.
On October 15, 2004, appellant filed another motion to compel production of her files. Respondents filed opposition, and the motion was denied. Sanctions were awarded against appellant.
B. Analysis
Appellant argues the trial court abused its discretion in granting summary judgment when she was unable to present evidence in opposition because respondents refused to produce her client files in the underlying cases. “Management of discovery generally lies within the sound discretion of the trial court. [Citations.] Where there is a basis for the trial court’s ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. [Citation.]” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.)
Without citation to the record, appellant complains that the trial court prevented her from obtaining discovery by citing the attorney-client privilege. She reiterates her lengthy efforts to obtain the files prepared by her attorneys in the underlying actions. Appellant claims that the documents produced by respondents are not sufficient to oppose the motion because they were from the files of Haight, Brown’s counsel during the trial, and were not the files generated by her own attorneys. The record reflects that documents from the files maintained by counsel for Haight, Brown in the underlying race discrimination case were provided to counsel for respondents, who in turn gave what they had to appellant.
Appellant complains that the trial court denied her motion for all documents concerning the dissolution of the McClain-Hill firm. She points out that the dissolution did not relieve respondents of their fiduciary obligations to represent her. The McClain-Hill respondents take the position that they have produced all the documents in their possession, although they cannot speak for any documents in the possession of respondent Schropp.
Clearly, appellant had the right to copies of the files generated and maintained by her attorneys in representing her in the underlying actions. The problem is that it appears that at least portions of these files are not in the possession of the McClain-Hill respondents. We infer from the trial court’s repeated denial of appellant’s further motions to compel production of the files that it credited the McClain-Hill respondents’ representation that they had produced all the files in their possession. Apparently respondent Schropp has left the state; he has not appeared on this appeal. He has been disciplined by the State Bar of California for his conduct in this matter and has been suspended from the practice of law in this state since 2003. It is unclear whether the documents appellant seeks are in Schropp’s possession, or were lost in the tumultuous dissolution of the McClain-Hill firm.
We have carefully reviewed the record of appellant’s discovery efforts. While we understand appellant’s frustration at not being able to obtain the files she seeks, we find no abuse of discretion in the denial of her motions to compel. The McClain-Hill respondents cannot be ordered to produce documents not in their possession or control.
C. Sanctions
Appellant claims the trial court abused its discretion in imposing sanctions on her and in not sanctioning respondents. As we have seen, Schropp was sanctioned. In light of the entire record of the discovery dispute, we find no abuse of the trial court’s discretion in its decision not to sanction the McClain-Hill respondents, but to sanction appellant. The discovery process was complicated and delayed by appellant’s refusal to accept documents when offered.
II
Appellant argues the trial court erred in denying her a continuance of trial and in dismissing her case against Schropp and his law firm when she announced on the first day of trial that she could not proceed because she did not have her client files in the underlying actions. Schropp has not filed a brief in this appeal. The trial court warned appellant that her case would be dismissed and judgment in favor of Schropp would be entered. Appellant said: “That’s fine, your honor, and I’ll just appeal.”
We have concluded that the trial court did not abuse its discretion in denying appellant’s motions for production of her case files after remand because it credited the representation by the McClain-Hill respondents that they had produced all the documents in their possession or control. In essence, appellant had obtained the only documents available, and had exhausted all efforts to find more. Under these circumstances, further delay of the trial for additional efforts to obtain the same documents would have been fruitless.
Appellant was ordered not to bring additional motions to compel production of these documents from the McClain-Hill respondents on June 2, 2004. Despite this admonition, appellant brought two additional motions to compel against the McClain-Hill respondents. The motions were denied and she was sanctioned. Two motions to compel were granted as to Schropp on July 20, 2005, and he was sanctioned. We are not told whether this resulted in the production of any documents by Schropp. The Schropp repondents had been served with the prior motions to compel, but the record does not reflect that they filed any response.
The same day appellant’s motions to compel were granted against Schropp, the trial court denied her request to continue the trial. The continuance was sought because Schropp had not responded to discovery, and because appellant anticipated the necessity for thyroid surgery at an unspecified date.
Appellant now argues the trial court abused its discretion in refusing to continue the trial date, and in dismissing her action for failure to prosecute before an adequate time had passed to obtain the discovery Schropp and his firm were ordered to produce.
We review the denial of a motion to continue a trial for abuse of discretion. (Forrest v. Department. of Corporations (2007) 150 Cal.App.4th 183, 200.) California courts possess inherent supervisory and administrative powers, as well as the inherent power to control litigation. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758, citing Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) Section 583.150 provides in pertinent part: “This chapter does not limit or affect the authority of a court to dismiss an action . . . under inherent authority of the court.”
Appellant had exhausted her efforts to obtain documents from the McClain-Hill respondents, having received all they had. Schropp had consistently refused to respond to her motions to compel. Appellant asserted that she would not be available for trial because of a thyroid condition, but her supporting documents did not demonstrate her unavailability. On the date set for trial, she did not invoke a medical excuse for failing to proceed against the Schropp defendants. Under these circumstances, we cannot conclude that the trial court abused its discretion in denying the continuance and in dismissing the case.
Appellant also contends the trial court abused its discretion in refusing to inform her of section 583.150 as the basis for the dismissal order. In light of the inherent power of the court and section 583.150 as we have discussed above, the court had the authority to dismiss the action, and we find the failure to cite that authority at trial harmless. It was clear that the case was being dismissed because appellant said she could not proceed.
III
Appellant also argues that Judge Grimes should have been disqualified.
Appellant filed a second disqualification motion under section 170.1, subdivision (a)(6) on June 7, 2005. She contends that Judge Grimes failed to provide a timely response. Section 170.3, subdivision (c)(3) gives the trial court judge 10 days in which to consent to disqualification or to file a verified answer admitting or denying the allegations. In her opening brief, appellant asserts that she spoke with the court clerk for Judge Grimes on July 11, 2005, and was told that neither the clerk nor Judge Grimes had received the disqualification motion. Eventually, the clerk found the motion (attached to the motion to compel), but said that Judge Grimes had not seen the disqualification motion. We note that there is no citation to the record to support these assertions.
The record reflects that Judge Grimes filed an order striking the motion to disqualify on June 9, 2005, with a verified answer. A certificate of mailing the notice of the order striking the disqualification motion to appellant at two addresses is dated June 9, 2005. Neither of the addresses listed is the Washington D.C. address listed by appellant on a notice of change of address she filed June 7, 2005. Appellant asserts, without citation to the record, that she never received the order. At the hearing on appellant’s motions to compel discovery from Schropp, appellant raised the notice problem concerning the order striking her statement of disqualification. The trial court stated that a third copy of her order striking the motion to disqualify would be sent to appellant at her new address. Thus appellant had actual notice as of July 20, 2005, that her statement of disqualification had been stricken.
This issue is not cognizable on appeal because the exclusive method of review is a petition for writ of mandate sought within 10 days’ notice of the decision of the trial court: “Section 170.3, subdivision (d) specifies ‘the determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate . . . sought within 10 days of notice to the parties of the decision. . . .’ As this court has held, all litigants ‘who seek to challenge denial of a statutory judicial disqualification motion are relegated to writ review as described in section 170.3(d).’ Likewise, section 170.3 subdivision (d) ‘forecloses appeal of a claim that a statutory motion for disqualification authorized by section 170.1 was erroneously denied, and this preclusion applies even when the statutory basis . . . appears to codify due process grounds for challenging the impartiality of a judge.’ Thus, as our Supreme Court has affirmed, ‘the exclusive means for review’ of a determination on the disqualification of a judge is by a petition for writ of mandate in accordance with section 170.3 subdivision (d).” (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 970-971, fns. omitted.)
Here, appellant did not seek a writ of mandate reviewing the trial court’s orders on the disqualification statement. Even if we were to construe the appeal as a petition for writ of mandate, it was untimely. Appellant had actual notice her statement of disqualification had been stricken no later than July 20, 2005. She did not file her notice of appeal until October 27, 2005. This exceeded the 10-day period allowed under section 170.3, subdivision (d).
IV
As we explain, appellant’s contention that there were additional client files to which she was entitled formed the basis for her only response to the motion for summary judgment we now review.
A. Appellant’s Response to Summary Judgment
In response to the present motion for summary judgment, appellant filed a “Response to Separate Statement of Undisputed Material Facts.” We quote the entire text of the response: “Plaintiff hereby submits the following response to Defendants’ Separate Statement of Undisputed Material Facts. [¶] Plaintiff hereby disputes each and every undisputed fact in Defendants’ Separate Statement. Defendants[’] bad-faith withholding, destruction, or alteration of a document or other physical evidence contained in her client files prevents her from adequately responding to their each undisputed fact in their bogus Separate Statement. Plaintiff has diligently been trying for 4 years to obtain her client files from the defendants and the defendants have refused to give her property to her. It is easy to file a motion for summary judgment and statement of undisputed material facts when the defendants have all of the cards stacked in their deck, meaning all of Plaintiff’s client files. [¶] A motion for disqualification has been filed to remove Judge Elizabeth Grimes as presiding judge in this case as a result of her bias and prejudice against this pro se litigant.”
Apparently appellant was served with a motion for summary judgment set for hearing in September 2004 and filed her response to that motion. But that motion was not filed with the court, and a new motion for summary judgment was set for hearing in November 2004. The record on appeal contains no further direct response by appellant, other than an additional motion to compel production of documents.
Appellant also filed a response to the motion for summary judgment, or in the alternative, summary adjudication. She asserted: “Plaintiff can’t respond to the Defendants’ Motion due to the fact that the Defendants have failed to provide to Plaintiff her client files in order to defeat their misleading motion. Plaintiff has diligently been trying for 4 years to obtain her client files from the defendants and the defendants have refused to give her property to her.” Plaintiff then described in detail her efforts to obtain the documents, including cancelled checks for funds paid from her settlement of her case against the MTA. She claimed that the trial court judges who denied her discovery motions were biased against her. Appellant referenced a separately filed motion to disqualify Judge Grimes for bias.
Appellant supported her response to the summary judgment motion with a declaration stating that she was unable to respond to the motion because she had not been given her client files. She also stated that she had tried unsuccessfully for four years to obtain the files, but was given files from defense counsel for Haight, Brown instead. Appellant also declared that she had filed a motion to disqualify Judge Grimes. Attached were various documents which appear to have come from files of the counsel for Haight, Brown in the underlying race discrimination case. None of these documents contains evidence relevant to the issues raised in the motion for summary judgment.
Appellant’s failure to file a substantive opposition to the motion for summary judgment puts the case in the same procedural posture presented in Crumb I: the moving parties obtained summary judgment after there was no substantive opposition. As in Crumb I, respondents were required to establish a right to summary judgment on the merits. “[U]nless the moving party has met its initial burden of proof, the court does not have discretion under subdivision (b) of section 437c to grant summary judgment based on the opposing party’s failure to file a proper separate statement.” (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.)
B. Legal Principles
A moving defendant has the initial burden of showing that one or more elements of each cause of action cannot be established or that there is a complete defense to the action. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854.) We exercise our independent judgment in reviewing an order granting summary judgment, applying the same analysis as the trial court. (Id. at p. 860.) Because appellant presented no evidence relating to the issues raised in the motion for summary judgment, our review is confined to the evidence proffered by respondents in support of their motion.
C. Respondents’ Theory
Appellant’s malpractice claim is based on three broad categories of professional negligence: failure to file an opening brief in her appeal from the nonsuit in her action against Haight, Brown, resulting in dismissal of the appeal; failure to inform her that Haight, Brown had offered to forgo $150,000 in fees and costs awarded in the underlying action in return for the dismissal of the appeal; and mishandling of the medical liens in her underlying personal injury action against MTA. These factual allegations form the basis of the four causes of action remaining upon remand following Crumb I: professional negligence (first cause of action); abandonment (third cause of action); breach of contract (fourth cause of action); and fraud (eighth cause of action).
In moving for summary judgment, respondents did not dispute that malpractice was committed. Instead, they argued that appellant cannot show that she suffered any legally cognizable damages as a result, and therefore, they are entitled to summary judgment on the remaining counts, whether pled in tort (first, third, and eighth causes of action) or contract (fourth cause of action).
As to the dismissal of the appeal from the nonsuit in the underlying action against Haight, Brown, respondents argue that appellant presented no evidence of racial animus or motive in the underlying trial. Because there was no evidence of this essential element, respondents argue that appellant could not have prevailed on appeal because the nonsuit was properly granted. Since the appeal would have been unsuccessful, they conclude that appellant suffered no damages when it was dismissed for failure to file an opening brief.
In support of this argument, respondents presented 22 undisputed facts. Each undisputed fact concerned problems appellant experienced while at Haight, Brown. Excerpts from the trial transcript in the underlying race discrimination case are cited in support of each fact. Racial animus or bias is a necessary element of appellant’s race discrimination claim. “It is unlawful employment practice for an employer ‘to discharge [a] person from employment or . . . to discriminate against [that] person in compensation or in terms, conditions, or privileges of employment’ based on that person’s race or national origin. ([Gov. Code,] § 12940, subd. (a).) . . . .” (Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367, 1379 (Jones).) “The plaintiff must generally show that: he or she was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive.” (Ibid.)
“On a defense motion for summary judgment against a disparate treatment claim, the defendant must show either that one of these elements cannot be established or that there were one or more legitimate, nondiscriminatory reasons underlying the adverse employment action. (Guz [v. Bechtel National, Inc. (2000)] 24 Cal.4th [317,] 356; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)” (Jones, supra, 152 Cal.App.4th at pp. 1379-1380.)
The Jones case is instructive. In Jones, the plaintiff sued for gender discrimination, race discrimination, sexual harassment, and unlawful retaliation under the Fair Employment and Housing Act (FEHA, Gov. Code § 12900 et seq.). The Court of Appeal concluded that plaintiff had not shown a nexus between her coworkers’ conduct and her gender or race; therefore, she could not make out a claim for discrimination. In addition, the Jones court found that the plaintiff had failed to produce evidence rebutting the defendants’ proffered reasons for certain employment decisions and had not shown the defendants’ reasons were merely pretexts for discriminatory conduct. Based on these findings, the court concluded that any slights or offenses plaintiff complained about did not rise to the level of discrimination. (Jones, supra, 152 Cal.App.4th at pp. 1379-1380.) It affirmed summary judgment for the defendants.
Here, the evidence presented by respondents in support of the motion establishes that plaintiff believed she was discriminated against at Haight, Brown because of her race. But her subjective belief is not enough to warrant reversal of summary judgment. “[P]laintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations. (Chiaramonte [v. Fashion Bed Group, Inc. (7th Cir. 1997)] 129 F.3d [391,] 401; Villiarimo [v. Aloha Island Air, Inc. (9th Cir. 2002)] 281 F.3d [1054,] 1061.) And finally, plaintiff’s evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.)” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433-434.)
Because FEHA is modeled on the federal Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), California courts have found analogous federal cases useful in deciding cases under FEHA. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 433.)
D. The Evidence
The evidence regarding the claim of racial discrimination in the underlying case presented by respondents in support of their motion falls into several categories.
1. Appellant’s Interaction with Haight, Brown Coworkers
a. Statements by Ms. Nicholas
In their separate statement, respondents referenced evidence of an incident between appellant and a coworker over a timesheet. They cite three pages of trial transcript, but only one of these is in the record on appeal. In that excerpt, appellant testified that Ms. Nicholas had made a negative comment about her in December 1992. Appellant discussed this with Elaine Golan in personnel. When asked what happened during that meeting, appellant said “Elaine Golan essentially said, ‘that’s hard to believe.’” Appellant testified that she did not tell Ms. Golan at that time that she was concerned about what was happening in Cluster 3, the section of Haight, Brown to which she was assigned. Since we are not told what Ms. Nicholas allegedly said about appellant, we find no evidence of racial animus in this incident.
b. Vulgar Language
Respondents’ undisputed fact No. 3 concerns Natalie Conti, a legal secretary in Cluster 3 at Haight, Brown. Appellant testified at trial that Conti used vulgar language in the office every day. Appellant was asked: “How was Ms. Conti’s language in the office different as it applied to you?” She answered: “It was directed right at me.” Appellant explained that Conti would use vulgar language each time she passed appellant’s desk. Conti stopped using this language after appellant chased her. Ms. Nicholas saw appellant chase Conti. Appellant requested a meeting about this incident but there was none. Conti apologized in December 1992, and she no longer directed vulgar language at appellant.
The vulgar language is not quoted in the excerpts provided by respondents. But in Crumb I, we reviewed the evidence of Conti’s language toward appellant and concluded: “None of these epithets was expressly racial in nature, and none appear to be germane to the issues in the case.” (Crumb I, nonpub opn., p. 11.) In the absence of contradictory evidence, we find no evidence of racial motivation in the language used by Ms. Conti.
c. Paycheck Incident
As undisputed fact No. 4, respondents cite appellant’s trial testimony concerning another incident with Conti. Undisputed fact No. 5 concerns the same incident. On December 15, appellant came to work late and wanted her paycheck. She went to Nicholas, but she was not there. So appellant went to Conti who said she would get appellant’s check. Conti got the check and said she should not have done so because it would be a problem for Nicholas. Appellant testified that she offered to return the check to Conti if it was going to be a problem for Nicholas. Conti said it was alright and that she would tell Nicholas that she had given appellant the check.
Later that day, appellant saw Conti and Nicholas talking about appellant getting her check from Conti. Conti had one hand on her hip and was shaking her other finger in Nicholas’s face. Appellant testified that Conti was saying “Then she said to me, ‘You tell her if she has a problem about you getting my check, you just tell her that I said for her to come down and see me.’” Appellant understood this to be an imitation of what she had said to Conti, and how she had acted. This upset appellant very much, so she went into the bathroom and cried. She wrote a memorandum about the incident and gave it to firm management.
Undisputed fact No. 9 is based on appellant’s testimony that this was the first time she became concerned that she was being discriminated against because of her race at Haight, Brown. She testified: “Well, I was concerned because of the numerous problems that I had encountered in regards to Ms. Nicholas’s behavior toward me, Ms. Conti’s constant verbal and abusive and offensive harassment toward me for no reason, the fact that white secretaries were treated differently and had been given special arrangements.”
Defense counsel objected to this evidence on the ground that there was no foundation for appellant’s testimony that white secretaries were being treated differently. The trial court said: “I’m going to sustain the objection as to foundation. However, that’s her opinion. But I’m going to sustain the objection. The jury has to make the decision whether—based upon the circumstances, as to whether there’s discrimination or not.”
We understand the trial court’s ruling to mean that the testimony was admissible as to appellant’s state of mind or opinion, but was not admissible to establish that white secretaries at Haight, Brown were treated differently than appellant. The evidence of this incident establishes that appellant had a poor relationship with some of her coworkers, but does not establish that any action taken by Haight, Brown was racially motivated. As we have observed, a plaintiff’s subjective belief that he or she is the subject of racial discrimination does not raise a triable issue of fact. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at pp. 433-434.)
2. Working Conditions
Several undisputed facts concern appellant’s treatment at Haight, Brown by managers or supervisors.
a. Unequal Treatment
Undisputed fact No. 2 is based on appellant’s trial testimony about being asked to work for an additional attorney. Appellant testified that when asked by Nicholas to do work for a fourth attorney, she responded: “Why did Susan Lund [an attorney] come to me to ask me to do her work when there was a secretary, a white secretary, that sat two desks down from me who only worked for one partner—I’m sorry, just one person?” Appellant told Nicholas that she could not assist Lund at that time, but was told that she had to do any attorney’s work when asked. She testified that the white secretary, Jacqueline Dunlop, was assigned to only one attorney at the time.
No further information is provided about the assignments given appellant in contrast to Ms. Dunlop. The reason appellant was asked by Ms. Lund to do some work for her is not given. Once again, we have only appellant’s subjective belief that she was being treated differently from another secretary because of race. This was not sufficient to prove Haight, Brown acted with racial motivation.
Undisputed facts No. 7 and No. 8 concerned what appellant perceived as favorable treatment given another secretary. In the trial testimony cited in support of this fact, appellant testified that she became aware in April 1993 that Geri Arnais, another secretary, was working three and one-half days a week. When appellant started four-day weeks in April 1993, her pay was reduced although that was not what she understood would happen. A person in payroll told her that her pay had been reduced because she was working a four-day week. She learned that Geri Arnais was allowed to make up time that she missed because of working a reduced work week. Appellant was not allowed to do so. While this evidence may indicate that appellant was treated differently than Ms. Arnais, no racial motivation for that treatment is presented.
Undisputed facts No. 10 and No. 11 are based on appellant’s testimony that she was concerned at the time of the incident in December 1992 involving Conti and Nicholas that she was not being afforded the same terms of employment as some other secretaries at the firm. Appellant testified that she thought her problems were not the result of personality conflicts because she did not know anyone and had no connection with Conti. Nicholas was not assisting Crumb, was not talking with her, and was not addressing the problem. In addition, Crumb cited her unsuccessful attempts to have a meeting to discuss her problems. There is no evidence other than appellant’s subjective belief that this conduct was racially motivated. This evidence was not sufficient to establish racial bias by Haight, Brown.
b. Elimination of Appellant’s Cluster 3 position
Undisputed facts No. 12 and No. 13 arise from appellant’s testimony about the circumstances which led to the elimination of her position in Cluster 3. On April 28, 1993, Golan told appellant her position had been abolished. Golan said appellant could interview for the five vacant secretarial positions in the firm, or could become a floater. Appellant told Golan she believed her position was being abolished because of Ms. Nicholas. Golan told her it was because attorney Compton was retiring and attorney Streeter was going out on maternity leave. Golan took appellant to speak with Bruce Fuller. Fuller told appellant that Nicholas had nothing to do with this. Although Golan said she was going to set up interviews for appellant, she never did. According to appellant, Golan never told her that the only opportunities with the firm were for secretaries willing to work five days a week.
In support of undisputed facts No. 12 and No. 13, respondents cite pages 712-714 of the trial testimony. But the excerpt provided in support of the motion also contains pages 715-718. Assuming, but not deciding, that we should not restrict our review on appeal to evidence cited in the separate statement if it was presented to the trial court (see King v. United Parcel Service, Inc., supra, 152 Cal.App.4th 426, 437-438), we briefly review the evidence on pages 718-719. In those pages, appellant testified that Fuller told her that Nicholas did not have anything to do with her position being abolished. He told appellant that she would be able to interview for a transfer within the firm. Golan told her that she was setting up interviews for appellant, but Golan never called with a schedule. Golan never told appellant that there were no job opportunities in the firm if appellant continued to insist on working a four-day week. Appellant testified that she would have been willing to work a five-day week, and that she never told either Fuller or Golan she was not. Golan never told her that she was not qualified for any particular open position in the firm.
Appellant was told that her position was eliminated because one attorney was retiring and the other was going on maternity leave. She presented no evidence to contradict this nondiscriminatory reason for the elimination of the Cluster 3 position, and thus raised no triable issue of material fact concerning racial bias as to this undisputed fact.
Undisputed fact No. 14 also is based on events following the elimination of appellant’s position. According to respondents, it is undisputed that appellant claimed she was refused the opportunity to transfer within the firm, and was told to become a floater or be fired. The same undisputed fact also asserts that appellant claimed a supervisor yelled and banged his fist on the desk when giving her this information, but that appellant also claimed in contradiction that this supervisor threatened to put her on a very busy desk at the firm. Pages 721 and 722 of appellant’s trial testimony are cited in support of these facts.
In that transcript excerpt, appellant testified that Bruce Fuller told her: “‘You think you were working on a busy desk when you were working for Ed Compton. You haven’t seen a busy desk until you see the desk I’m going to put you on.’” Appellant said that Fuller asked her to leave Haight, Brown during that meeting. She told him that she did not want to leave. Appellant left work early that day because she was upset, crying, and nervous. She said she knew no one wanted her at the firm. Fuller said it was best for her to leave early. Appellant contradicted her own testimony. She said that Fuller never told her that the floater position at the firm might last only two months or might be eliminated. There is no testimony in the passages cited by respondents describing Fuller or any other supervisor at Haight, Brown pounding the desk.
This testimony does not constitute evidence of a racial motive for the actions taken by Haight, Brown.
3. Performance Evaluations
Undisputed fact No. 6 is based on appellant’s testimony about her performance evaluations. She testified that attorney Streeter told her that she had not been sent a form to evaluate her. Appellant discussed this with Bruce Fuller, and understood a form would be provided to Ms. Streeter. She had to ask a second time. Fuller said the form had been sent.
Appellant also testified about an evaluation form purportedly prepared by Kimberly Warburton, and dated January 11, 1992. She testified that neither she nor Ms. Warburton were working at Haight, Brown in January 1992. Appellant testified that she had never seen that evaluation until she saw it in court. Based on writing on the bottom of the form (not specified in the transcript provided), appellant could not understand how “this” had happened.
This evidence of problems with appellant’s evaluation forms does not establish that the incidents were motivated by racial bias.
4. Appellant’s Opinion Regarding Racial Bias
Undisputed facts No. 18, No. 19, and No. 20 state that people at the firm were rude, distant and hostile to appellant and that this was because Nicholas had said something adverse about her. Appellant concluded that this was racially motivated. In the testimony cited in support of these facts, appellant testified when she handed her memorandum of December 18, 1992 (about the Conti incident) to Ms. Golan and Mr. Fuller, she told them: “[H]ow people’s attitudes had changed towards me and how people were just so distant, how they would roll their eyes at me. I would see them in the morning. I would try to make eye contact, just to say hello, and they would turn their heads in the opposite direction. Initially, Mr. Sheller was very friendly towards me, and for some reason or other, he just stopped being friendly; and that concerned me very deeply. And when I found out that Ms. Nicholas had told another employee something adverse about me, then everything began to come into place as to why people were treating me differently, why people wouldn’t look at me, smile at me, say hello to me. When I tried to make eye contact with people, they would just turn their heads. And John Sheller had started that, and that was what I had told them. I was concerned as to why he was indifferent.” She thought other people’s attitudes changed toward her as well.
Appellant was asked whether she still thought Conti was racist even if her two closest friends at the firm, and her boyfriend, were black. Appellant responded: “No, there’s not a doubt in my mind that Ms. Conti is not racist, whether she has just two black friends at the firm or whether she has a black gentleman that she goes with.” (We infer that appellant misspoke when she testified that Conti was not a racist.) She was asked whether there was anything that would convince her that none of this had anything to do with her race. Appellant answered: “Well, I would certainly like to know what it had to do with.” Appellant went on to testify that she had tried to come up with an explanation other than race, but could not.
Undisputed fact No. 21 is that appellant believes her supervisors were racist when they hired her. She testified that she thinks Bruce Fuller and Elaine Golan were racist when they hired her.
Each of these undisputed facts is based on appellant’s subjective belief that she was the victim of racial bias. Such a belief, without more, is insufficient to establish racial bias. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at pp. 433-434.)
5. Irrelevant Facts
Once again, respondents included several purportedly undisputed facts in support of their motion which are irrelevant to the issue whether appellant could prove that she suffered damages as the result of the dismissal of her appeal from the nonsuit in the race discrimination case. Fact No. 15 states that after her position in Cluster 3 was eliminated, appellant was upset, left work early, sought emergency psychiatric treatment, and was placed on stress disability. Fact No. 16 states that appellant filed a workers compensation claim. Fact No. 17 states that during a psychiatric evaluation, appellant threatened to kill six coworkers at Haight, Brown. These facts are not relevant since respondents do not argue that these circumstances provided a legitimate nondiscriminatory reason for any action taken by Haight, Brown.
The only record of the underlying trial provided to us consists of excerpts cited by respondents in support of their separate statement of undisputed facts. Our review of these passages demonstrates that while there was evidence of problems experienced by appellant at Haight, Brown, there was no evidence that they were racially motivated. Here, as in Jones, 152 Cal.App.4th at pages 1379-1380, there is no nexus shown between the coworkers’ conduct and appellant’s race. In the absence of such proof, appellant could not make out a claim for discrimination and therefore no triable issue of material fact as to the likelihood of reversal of the nonsuit is raised. As the court in Jones observed, “any slights or offenses [the plaintiff] complains about did not rise to the level of discrimination.” (Ibid.) To prevail against a motion for nonsuit, a plaintiff must ‘“demonstrate substantial evidence in the record to support each claim asserted.’ . . . . ‘Mere conjecture or nonsensical interpretations of evidence are not sufficient to overturn a nonsuit.’” (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 115, quoting Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580.)
“In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. The purpose of this requirement, which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-834.) It serves the essential purpose of ensuring that damages awarded for the attorney’s malpractice actually have been caused by the malpractice. (Id. at p. 834.)” (Viner v. Sweet (2003) 30 Cal.4th 1232,1241.)
On this limited record, appellant failed to raise a triable issue of material fact that but for the negligence of respondents, the Court of Appeal would have reversed the nonsuit in her race discrimination action. Respondents successfully negated the damages element of appellant’s causes of action to the degree they were based on her claim of racial discrimination.
In Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, the plaintiff sued his former lawyers for malpractice, in part because the lawyers advised him against appealing an adverse jury verdict finding plaintiff acted in bad faith and committed fraud. Neither the amended complaint nor a cross-complaint in the underlying action were made part of the record on appeal in the malpractice action. (Id. at p. 859.) The malpractice defendant successfully sought summary judgment, in part on the ground that no injury was caused by the failure to appeal the bad faith and fraud findings because those arguments would have been unsuccessful on appeal. (Id. at p. 862.) The defendant argued that the appeal would have been unsuccessful because substantial evidence at the underlying trial supported the jury’s findings of bad faith and fraud. (Id. at p. 864.)
The Kurinij court explained the plaintiff’s burden on appeal from the summary judgment in a malpractice case: “The issue presented to the trial court was whether an appeal of these issues would have been successful. In determining that issue, the trial court addresses the subject as though it were sitting as a Court of Appeal. The parties must address and argue the issues as if they were addressing the Court of Appeal. In this context there are legal concepts peculiar to appellate law which must be considered. One of the essential rules of appellate law is that ‘[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]’ (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) It is the duty of the appellant to present an adequate record to the court from which prejudicial error is shown. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1533.) Also, the appellant must present argument and authorities on each point to which error is asserted, or else the issue is waived. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)” (Kurinij v. Hana & Morton, supra, 55 Cal.App.4th at p. 865.)
The court in Kurinij continued: “Because these issues were presented to the trial court in a motion for summary judgment, it was incumbent upon H & M to first present a prima facie showing that appeal on these issues would not have been successful. We conclude it satisfied its burden. In addition to the presumption of correctness of the judgment upon which H & M was entitled to rely, it provided excerpts from trial transcripts which demonstrated that substantial evidence existed to support the findings of bad faith and fraud. It was then incumbent upon appellant to present evidence, and argument, to demonstrate why an appeal would have been successful. We conclude appellant failed to carry its burden on these issues.” (Kurinij, supra, 55 Cal.App.4th at pp. 865-866.)
Our case is similar. We have concluded that respondents presented a prima facie showing that appeal of the nonsuit in the underlying action would not have been successful because racial motivation was not demonstrated. Appellant has not presented evidence and argument to show that an appeal would have been successful on any theory.
V
Respondents’ second argument in support of the summary judgment is that appellant was not damaged by their failure to inform her that Haight, Brown had offered to waive the award of $150,000 in costs and fees in the underlying race discrimination action.
We addressed the same argument in Crumb I: “Respondents also contend that appellant cannot show damages because it is undisputed that the cost judgment was satisfied at no expense to appellant. Respondent has shown that Haight, Brown filed a satisfaction of judgment. Their separate statement in support of the motion cites a declaration by Rice which states that respondents successfully settled the attorney’s fees judgment with Haight, Brown at no expense to appellant. Although this statement is conclusory, appellant lodged no evidentiary objection. We therefore conclude that respondents met their burden of showing appellant was not damaged as a result of their failure to inform her of the settlement offer by Haight, Brown.”
This holding in Crumb I is law of the case. “Where an appellate court states in its opinion a principle or rule of law necessary to its decision, that principle or rule becomes the law of the case. (Clemente v. State of California (1985) 40 Cal.3d 202, 211.) The law of the case must be adhered to both in the lower court and upon subsequent appeal.” (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156.) “‘“‘The rule of “law of the case” generally precludes multiple appellate review of the same issue in a single case. . . .’” [Citation.] [¶] . . . [¶] We will apply the law of the case doctrine where the point of law involved was necessary to the prior decision and was “‘actually presented and determined by the court.’” (People v. Shuey [ (1975) ] 13 Cal.3d [835,] 842.)’ (People v. Gray (2005) 37 Cal.4th 168, 196-197.)” (Munoz v. City of Union City (2007) 148 Cal.App.4th 173, 179.) The doctrine applies where the prior appeal is from a decision short of a full trial. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 14-15.)
“[N]othing in the law of the case doctrine itself limits the additional evidence that a party may introduce on retrial to that which ‘could not have been presented at the first trial through the exercise of due diligence.’” (People v. Barragan (2004) 32 Cal.4th 236, 247.) But on remand, when the issues and facts remain substantially the same, the doctrine of law of the case applies. (Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 761.)
We invited Ms. Crumb and counsel for respondents to file letter briefs as to the applicability of the doctrine of the law of the case, citing them to 9 Witkin, California Procedure (4th ed.) Appeal, section 895 et seq. Counsel for the McClain-Hill defendants argued the doctrine does not apply to bar the present appeal. He argued that new evidence had been presented in support of the second motion for summary judgment as to whether appellant had presented evidence of racial animus in the underlying trial. Counsel for the McClain-Hill defendants did not argue that new evidence was presented in the second motion for summary judgment relative to the failure to inform appellant of the Haight Brown offer to waive fees and costs or the mishandling of her medical liens. Ms. Crumb’s letter brief did not address the law of the case doctrine.
Here, as we have discussed, appellant presented no evidence in opposition to the second motion for summary judgment, although respondents presented the same evidence in support of their motion and in their separate statement as before. Our earlier conclusion in Crumb I thus applies here with equal weight—appellant failed to demonstrate that she was damaged by the failure of respondents to communicate the Haight, Brown offer to waive the fee award.
VI
Respondents argue that appellant cannot show that she was damaged by the mishandling of her medical liens in her personal injury action against the MTA. Appellant had claimed in part that respondents failed to properly calculate the amount owed her treating physician, Dr. Ruffalo, and therefore the MTA settlement did not cover the amount he was owed. As in Crumb I, respondents supported their motion with undisputed facts establishing that appellant had acknowledged that she was solely responsible for the payment of Dr. Ruffalo’s fees; that there is no evidence that the MTA would have paid more than it did to settle appellant’s claims; and that appellant has no information that her credit rating has been impaired by the actions or omissions of respondents. The motion for summary judgment also is supported by appellant’s deposition testimony that she never had seen her credit report. Fact No. 32 is irrelevant in that it describes the allegations appellant has made in more than one action against the MTA.
As we have discussed, appellant presented no evidence in opposition to the motion on this ground. In Crumb I, we rejected appellant’s attempt to present argument and evidence for the first time on appeal. We held that she had waived any theory based on underlying facts not included in her separate statement of facts or not put in issue below. (Crumb I, p. 15.) We concluded: “Based on this record, there is no triable issue of material fact as to whether appellant was damaged by respondent’s failure to satisfy Dr. Ruffalo’s lien from the personal injury settlement proceeds.” (Crumb I, p. 15.) We concluded that appellant had failed to raise a triable issue of material fact as to the mishandling of the proceeds of her MTA personal injury action. (Crumb I, p. 17.)
Appellant has presented no new facts in opposition to the motion for summary judgment regarding the handling of her personal injury case against the MTA. Under the doctrine of law of the case, respondents are entitled to summary judgment on this ground. (See Building Industry Assn. v. City of Oceanside, supra, 27 Cal.App.4th at p. 761.)
VII
We briefly address additional issues raised by appellant.
A. Right to Proceed Pro Se
Appellant devotes a portion of her briefing to her right to proceed pro se, emphasizing her right to conduct discovery. We do not disagree, but observe that she is not entitled to any special treatment because of her pro se status. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Appellant complains that we denied her motion to augment the record on appeal with the discovery she served on all of the respondents with the exception of Cornwell. She enumerates these in her opening brief, a list of 37 items. Appellant contends that in response, she received only one document involving insurance coverage.
That assertion is inconsistent with the discovery history we have discussed above. Appellant received boxes of documents from the McClain-Hill defendants and was repeatedly offered voluminous documents. We find no denial of access to discovery, or violation of procedural due process. As we have observed, the trial court believed that the McClain-Hill defendants had produced everything in their possession, and Schropp, who apparently now lives out of California, was recalcitrant in refusing to produce any document in his possession. Appellant does not inform us that she sought terminating sanctions against Schropp for his recalcitrance. We find no denial of appellant’s right to represent herself in this action.
B. Denial of Right to Proceed to Trial In Forma Pauperis
Appellant complains that the trial court erred in denying her application to proceed to trial in forma pauperis. That ruling is not reviewable on appeal from the judgment. “The proper method to have the ruling [denying permission to proceed in forma pauperis] reviewed would have been for plaintiff to petition this court for a writ of mandamus. (See Isrin v. Superior Court (1965) 63 Cal.2d 153, 154-155, 45 Cal.Rptr. 320, 403 P.2d 728.) Under such proceeding, if the ruling were determined erroneous, the trial court would have been ordered to rehear the motion and to determine the status of plaintiff as to being or not being a pauper, which status has not been determined. It is too late to have that status determined now. By not following such procedure plaintiff has waived [her] right to have the ruling reviewed.” (Fuller v. State of California (1975) 51 Cal.App.3d 926, 950 [on appeal from judgment by jury verdict].)
DISPOSITION
The judgment in favor of Schropp and the Law Firm of James Schropp is affirmed. The judgment in favor of the McClain-Hill respondents is affirmed. Each side is to bear their own costs on appeal.
We concur: MANELLA, J., SUZUKAWA, J.