Opinion
E050064 Super.Ct.No. RIC393729
11-15-2011
THE MELLOR LAW FIRM, APC et al., Cross-defendants and Respondents, v. DONALD M. OAKS, Cross-complainant and Appellant.
James Toledano for Cross-complainant and Appellant. Robie & Matthai, Kyle Kveton, Natalie A. Kouyoumdjian and Sandra L. Block for Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Kenneth Andreen, Judge. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
James Toledano for Cross-complainant and Appellant.
Robie & Matthai, Kyle Kveton, Natalie A. Kouyoumdjian and Sandra L. Block for Cross-defendants and Respondents.
I
INTRODUCTION
Appellant and cross-complainant, Donald M. Oaks (Oaks), sued his former lawyer, The Mellor Law Firm, APC (Mellor), for legal malpractice. Oaks appeals from a judgment entered after the trial court granted a motion for nonsuit on Oaks's cross-complaint.
Oaks argues the trial court erred in granting Mellor's motion for nonsuit based on the court's pretrial evidentiary rulings about confidentiality and expert testimony. Oaks also contends that Mellor failed to produce a purple file folder holding attorney notes, entitling Oaks to terminating sanctions against Mellor. After careful consideration of the record, we affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Lawsuit and the Instant Cross-Complaint
In 2000, Oaks, and other defendants affiliated with Oaks, were sued by the plaintiff-lessor in Burkhardt-Schmitz Land Company v. Oaks, case No. 345006, for unpaid rent and damages for waste. Originally, Oaks was represented by Timothy P. Miller (Miller). In September 2000, Miller obtained an order setting aside the default of Oaks and filed an answer in Burkhardt-Schmitz.
In May 2001, Miller resigned from the State Bar with charges pending against him. Miller began working as a paralegal for the Mellor law firm, which in turn, began representing Oaks in April 2001. Burkhardt-Schmitz and Oaks agreed to mediate their dispute and they settled that case on August 2, 2001. In February 2002, after the August settlement, Oaks began representing himself in propria persona. Miller, acting for the Mellor law firm, returned a box containing the original case files to Oaks. Therefore, Mellor actively represented Oaks for only a few months from April 2001 until August 2001 and nominally until February 2002.
In May 2003, Mellor filed a complaint for attorney's fees against Oaks. In February 2004, Oaks filed a cross-complaint for legal malpractice against Mellor. Oaks alleged that Mellor had allowed defaults to be taken in Burkhardt-Schmitz, leaving Oaks exposed as the only defendant, and Mellor had failed to prepare for trial while agreeing to a binding proceeding and an unreasonable settlement that disfavored Oaks, damaging him in an amount greater than $300,000, plus attorney's fees paid to Mellor.
B. Oaks's Motion for Terminating Sanctions
In August 2009, more than seven years after Mellors returned the Burkhardt-Schmitz case file, Oaks filed a motion for terminating sanctions against Mellor. The motion asserts that Mellor's lawyers-the law firm of Robie and Matthai, including Kim Sellars (Sellars) and Sandra Block (Block)-impeded Oaks's efforts to litigate his malpractice claim by failing to produce all of Mellor's original files pertaining to Burkhardt-Schmitz. In particular, Oaks sought to obtain Mellor's "purple file folder labeled 'Attorney Notes & Memos V. #1'", containing handwritten notes. Although Mellor produced 302 pages, including the copy of a tab labeled "Attorney Notes & Memos V #1" (exh. 308), Oaks claimed it was not possible to reconstruct the original contents of the purple folder.
In four deposition sessions, Mellor's attorney, Sellars, offered inconclusive information about the purple folder but ultimately Block, in the fifth deposition session, denied having possession of a purple folder. In his sixth session, Mark A. Mellor submitted his declaration, stating that he did not have any additional documents other than those copies already produced. Years after the discovery dispute and on the eve of trial, Oaks asked the court to impose a terminating sanction against Mellor for failure to comply with discovery.
Mellor opposed the motion, arguing in substance that Mellor had produced copies of all documents and the "missing" purple folder did not exist. Nevertheless, Oaks was seeking to recover phantom handwritten notes, based on his current lawyer's speculation that other documents must necessarily have existed. Mellor further argued that Oaks's motion was fabricated as a strategy to avoid trial because Oaks had failed to designate experts in time for trial.
At the hearing on September 28, 2009, Judge Gary B. Tranbarger denied Oaks's motion for terminating sanctions, ruling that Oaks had failed to establish that Mellor had lost or destroyed material evidence.
C. Trial and Judgment
During trial, the court, Judge Kenneth Andreen, ruled that the proceeding between the parties in the underlying litigation between Burkhardt-Schmitz and Oaks was "an agreement to settle the case during the mediation process," not a binding arbitration. The court made a related ruling, granting Mellor's motion in limine, barring Oaks from making any reference to the mediation, including the introduction of any documents, evidence, or communications between Mellor and his agents and Oaks. (Evid. Code, §§ 1119, 1128.) Based on the ruling that prohibited evidence related to the mediation, and on the alternative ground that Oaks failed to designate an expert to testify about the standard of care for legal malpractice, the court granted Mellor's motion for nonsuit.
The judgment in favor of Mellor describes the trial proceedings as follows:
"The parties, through their respective counsel stipulated that [Oaks] may make an offer of proof in lieu of an opening statement, and that such offer of proof would satisfy the provisions of Code of Civil Procedure Section 581c(a). [Oaks] made his offer of proof as reflected in the Transcript of Proceedings. The parties stipulated that based on the Court's in limine ruling as amended on September 29 and 30, 2009, [Oaks] could not meet his burden of proof on his claims against [Mellor]. [¶] [Mellor], based on the stipulations and the offer of proof, made a motion for non-suit, which was granted. [¶] [Mellor] separately moved for non-suit on the grounds that [Oaks's] failure to offer or provide expert testimony also meant that [Oaks] could not meet his burden of proof on the claims asserted against [Mellor]. The Court granted [Mellor's] motion for non-suit on this separate and independent ground."
III
THE MOTION FOR TERMINATING SANCTIONS
Oaks maintains the trial court abused its discretion in refusing to sanction Mellor for the willful spoliation of vital evidence. (Code Civ. Proc., § 2023.030; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)
In reviewing a trial court's discovery order, the appellate court determines whether the lower court exceeded the bounds of reason under the circumstances. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.) The reviewing court does not substitute its own opinion for that of the trial court. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286.)
It was Oaks's burden to demonstrate error affirmatively and, where the evidence is in conflict, the appellate court will not disturb the trial court's findings. (Clement v. Alegre, supra, 177 Cal.App.4th at p. 1286.) The only exception is where a moving party demonstrates a responding party has destroyed evidence: "[A] party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense." (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.) That exception does not apply.
Here the trial court did not abuse its discretion. Oaks's argument necessarily fails because it is based on the flawed and unsustainable factual premise that Mellor destroyed or lost original documents. First, substantial evidence in the record establishes that Mellor gave Oaks the original documents for the Burkhardt-Schmitz case in February 2002 when Mellor stopped representing Oaks. Therefore, when Oaks sued Mellor in February 2004, Oaks, not Mellor, had possession of the original Burkhardt-Schmitz file. Mellor could not have produced the original file that had been given to Oaks.
Second, Oaks insists upon the existence (or destruction) of the purple file folder. Presumably, Mellor gave the purple folder to Oaks in 2002 with the other original documents. Assuming Mellor did not give Oaks the folder, nothing but speculation supports Oaks's contention that the folder still exists or was destroyed or contained any material evidence concerning Oaks's malpractice claim. (Williams v. Russ, supra, 167 Cal.App.4th at p. 1227.) In fact, Mellor supplied the court with a detailed analysis of the documents produced to Oaks, which confirms that Oaks received all the documents that would have been contained in the purple folder labeled "Attorney Notes & Memos V. #1," including a client information sheet, attorney notes, and legal research. Furthermore, the quantity of material produced by Mellor was reasonable given that Mellor actively represented Oaks for only four months, from April 2001 until the Burkhardt-Schmitz case settled through mediation on August 2, 2001. Finally, Mark A. Mellor submitted his uncontradicted declaration that he had searched for any additional, original files and no additional files existed.
In summary, Oaks has absolutely failed to demonstrate that the trial court abused its discretion in denying his motion for terminating sanctions for discovery abuse.
IV
THE MOTION FOR NONSUIT
The agreement between Oaks and Burkhardt-Schmitz was entitled "Stipulation for Mediation/Arbitration of Entire Dispute." The agreement expressly provided for a one-day mediation, to be followed by binding arbitration if necessary:
"The parties, during the first part of the day of Mediation/Arbitration, desire to conduct a mediation of their disputes in the Mediation/Arbitration and only if they reach impasse do the parties desire to have the mediator [retired judge, Elwood Rich] serve as arbitrator to conclude a binding resolution of the dispute with a binding decision, . . .
"If and when the Mediator concludes that the parties are truly at impasse and that the controversy cannot be settled through the mediation process, then the Mediator will inform the parties that they will go on with the binding arbitration stage of the proceedings in which the mediator will make a binding arbitration award of all disputes between The Parties, . . ."
As contemplated by the stipulated agreement, the parties settled their dispute through mediation without having to advance to the second stage of binding arbitration.
Oaks's central argument on appeal is that the lower court erred in finding that the agreement between Oaks and Burkhardt-Schmitz was an agreement to mediate, which was subject to the confidentiality restrictions of Evidence Code sections 1119 and 1128, thus denying Oaks the ability to present evidence in support of his malpractice claim.
We review rulings on the admissibility of evidence for abuse of discretion. (Caira v. Offner (2005) 126 Cal.App.4th 12, 32, citing People v. Griffin (2004) 33 Cal.4th 536, 587.) In Cassel v. Superior Court (2011) 51 Cal.4th 113, 123-138, the California Supreme Court recently confirmed that an attorney's mediation-related discussions with a client are confidential and, therefore, are neither discoverable nor admissible for purposes of proving a client's claim of legal malpractice, insofar as the attorney-client communications were for the purpose of, in the course of, or pursuant to, a mediation, within the meaning of mediation confidentiality statutes. (Evid. Code, §§ 1119, 1128.)
Although Oaks concedes that confidentiality applies to mediation proceedings, he continues to assert that he did not engage in a mediation. Evidence Code section 1115 defines mediation as "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." When clients participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. (Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 164.)
California cases and practice guides have recognized a form of mediation/arbitration: "A leading commentator has observed that where parties authorize a mediator to render a binding decision upon an impasse in settlement negotiations, 'the dispute resolution procedure then becomes, in effect, an arbitration.' (Knight et al., Cal. Practice Guide: Alternate Dispute Resolution (The Rutter Group 2004) ¶ 3:12.2, pp. 3-4.)" (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1624.) As also discussed in Knight, "[t]his process starts with traditional mediation but the parties agree in advance that if there is an impasse they will proceed to arbitration before the same person who acted as mediator. (The arbitration involves formal proceedings—i.e., presentation of evidence, witnesses, etc.) The arbitration may commence immediately or at some agreed date after an impasse is declared . . . ." (Knight, supra, ¶ 3:12.1, p. 3-4.)
In the present case, Oaks and Burkhardt-Schmitz expressly agreed to a mediation/arbitration as described in Lindsay and Knight. The parties settled their dispute during mediation without any need to proceed to arbitration. The trial court did not abuse its discretion in ruling that the confidentiality statutes apply to any attorney-client communications between Oaks and Mellor concerning the mediation.
Our conclusion that the trial court properly ruled on the issue of mediation confidentiality means that the trial court also properly granted Mellor's motion for nonsuit based on the paucity of evidence that could be presented by Oaks. (Code Civ. Proc., § 581c; Wheeler v. Raybestos-Manhattan (1992) 8 Cal.App.4th 1152, 1154.) Because the nonsuit was proper on that ground, we need not consider the alternative ground concerning the absence of expert testimony to support Oaks's legal malpractice claims. Nevertheless, we agree that expert testimony on the issue of attorney negligence was essential to avoid the trial court granting a nonsuit. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 986, citing Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975.)
The narrow exception to the rule requiring expert testimony on the issue of professional negligence applies only in blatant and egregious circumstances: "Where the attorney's performance is so clearly contrary to established standards that a trier of fact may find professional negligence without expert testimony, it is not required." (Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1146; Wright v. Williams (1975) 47 Cal.App.3d 802, 810.) No such extreme circumstances existed in Mellor's representation of Oaks during the four months before the case settled. Furthermore, expert testimony was essential to explain to lay jurors how Mellor purportedly deviated from the standard of care involved in the exercise of professional judgment and skill in preparing for and settling a case. (Kirsch v. Duryea (1978) 21 Cal.3d 303, 311; Lipscomb, supra, 87 Cal.App.3d at pp. 973-976; Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 744-746; Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1462.)
At oral argument, Oaks argued for the first time that the trial court could not grant a nonsuit until after he had presented his case. His argument contradicts the parties' stipulation allowing Oaks to make an offer of proof in lieu of an opening statement and in compliance with Code of Civil Procedure section 581c, the statute governing the procedure for nonsuits. Oaks did not object to this procedure at trial. On the contrary, he expressly agreed to it. His belated argument on this point fails. Based on Oaks's offer of proof, the trial court properly granted the motion for nonsuit on either of the alternative grounds urged by Mellor.
V
DISPOSITION
The trial court did not abuse its discretion in denying Oaks's motion for terminating sanctions or granting Mellor's motion for nonsuit. We affirm the judgment. Mellor, the prevailing party, is entitled to recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur: Hollenhorst
Acting P.J.
Miller
J.