Opinion
E052105
10-21-2011
JOHN M. SICILIANO, Plaintiff and Appellant, v. RAY J. ARTIANO et al., Defendants and Respondents.
Law Offices of Beck and Greer and Richard B. Beck; Law Offices of John M. Siciliano and John M. Siciliano, for Plaintiff and Appellant. Kostic Law Firm and Ljubisa Kostic for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC455460)
OPINION
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.
Law Offices of Beck and Greer and Richard B. Beck; Law Offices of John M. Siciliano and John M. Siciliano, for Plaintiff and Appellant.
Kostic Law Firm and Ljubisa Kostic for Defendants and Respondents.
I. INTRODUCTION
For the third time, we are asked to review the trial court's ruling on a motion for summary judgment. In the current appeal, plaintiff John M. Siciliano appeals from judgment following the trial court's grant of the motion for summary judgment brought by defendants Stutz, Artiano, Shinoff & Holtz (hereafter referred to as Stutz), Ray J. Artiano, and Robert Geile in Siciliano's action for intentional interference with a contract and intentional interference with prospective economic advantage. Siciliano contends summary judgment was improper because there was a triable issue of fact regarding fraud in the inducement, and the trial court erred in denying him leave to amend his complaint. We find no error, and we affirm.
We have taken judicial notice of our records in case Nos. E045162 and E047310.
II. PROCEDURAL BACKGROUND
In October 2003, Roupwatie Singh was injured in an automobile collision. She retained attorney Joan Louw-DeFazio to represent her in seeking recovery for her personal injuries. Louw-DeFazio never filed a lawsuit on Roupwatie's behalf; however, the insurance company for the owner of the vehicle made an offer to settle for policy limits in the amount of $100,000 in exchange for a release of "all responsible parties" and an express waiver of Code of Civil Procedure section 1542. Louw-DeFazio conceded the $100,000 offer was insufficient, and she did not recommend that Roupwatie accept the offer.
We refer herein to Roupwatie Singh and her husband Chanda Singh by their first names for clarity and convenience, and not intending any disrespect. We further note that Chanda died in September 2007.
Roupwatie eventually discharged Louw-DeFazio and in June 2004 retained Siciliano to represent her in the personal injury matter. The written fee agreement provided for a 40 percent contingency fee in the event Siciliano filed suit on Roupwatie's behalf. Siciliano filed suit on her behalf in July 2004 against various persons and entities not parties to this appeal. Siciliano expended about 135 hours of billable time on her behalf.
In June 2005, Siciliano made a demand for settlement in the amount of $1 million on a named defendant pursuant to Code of Civil Procedure section 998. In addition, the previous offer to settle from the insurance company had been forwarded to Siciliano.
On July 9, 2005, Roupwatie signed a substitution of attorney form for Stutz and Artiano to replace Siciliano. On July 12, 2005, Roupwatie signed a written contingency fee contract with Artiano and Stutz, calling for a contingency fee of 33 1/3 percent and for an unspecified referral fee to be paid to Geile. That same day, Stutz and Artiano notified Siciliano of Siciliano's discharge and demanded he withdraw any outstanding offers to settle. Siciliano complied with that demand.
In May 2006, Roupwatie obtained a settlement of $825,000 in her personal injury action, and Chanda received a settlement of $275,000 for his loss of consortium claim.
In August 2006, Siciliano filed his complaint against Stutz and Artiano, alleging causes of action for intentional interference with contract and intentional interference with prospective economic advantage. He and Louw-DeFazio alleged a separate cause of action against Roupwatie for quantum meruit. Siciliano later filed a Doe amendment naming Geile as Doe 1.
Siciliano sought $290,000 from Roupwatie (40 percent of her recovery). Louw-DeFazio sought $33,333 from Roupwatie (33 1/3 percent of the $100,000 settlement offer that had been received during Louw-DeFazio's representation of Roupwatie). Those claims were tried to a jury, which awarded $17,165 to Louw-DeFazio and $46,419 to Siciliano. Judgment in those amounts was entered against Roupwatie, and an appeal from that judgment is currently pending in this court in case No. E052352.
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On October 9, 2007, Artiano and Stutz filed a motion for summary judgment or summary adjudication. Following additional briefing, the trial court denied the motion. Artiano and Stutz filed a petition for writ of mandate, and in May 2008 this court issued a peremptory writ of mandate vacating the trial court's order and instructing the court to issue a new order "specifically refer[ring] to the evidence giving rise to triable issues of material fact."
In June 2008, Geile filed a motion for summary judgment or summary adjudication. In August 2008, Siciliano moved to amend his complaint. At the hearing in November 2008 on the summary judgment motions, the trial court found that a triable issue of fact existed as to whether defendants had wrongfully interfered with Siciliano's attorney-client relationship by falsely disparaging his abilities as a lawyer. The trial court therefore denied defendants' motions for summary judgment/summary adjudication. The trial court stated it intended to grant the motion for leave to amend but stayed its ruling so defendants could petition this court for a writ of mandate.
Defendants filed a petition for writ of mandate in case. No. E047310. In July 2009, this court issued a second peremptory writ of mandate instructing the trial court to grant summary adjudication to defendants as to the alleged act of defamation in the second and third causes of action. This court also instructed the trial court it could consider whether there was a triable issue of fact as to whether defendants had engaged in the separate wrongful act of fraud in the inducement. Siciliano filed a motion for reconsideration, following which this court modified its opinion to include the following paragraph: "Siciliano also argues that defendants engaged in fraud in the inducement by telling the Singhs that they would pay a lesser fee if they discharged [Siciliano]. However, it appears the trial court did not consider this issue in ruling on the motion. When the matter is returned to that court, it may consider the matter, if it considers it appropriate to do so." The modified opinion further stated, "There is no change in the judgment."
On November 9, 2009, the trial court granted summary judgment in favor of defendants, finding that no triable issue of fact existed as to the wrongful act of fraud in the inducement. The trial court also denied Siciliano leave to amend his complaint. Judgment was thereafter entered in favor of defendants, and this appeal ensued.
III. DISCUSSION
A. Grant of Summary Judgment
Siciliano contends summary judgment was improper because a triable issue of fact existed as to whether there had been fraud in the inducement.
1. Law of the Case
Under the doctrine of law of the case, "'The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial . . . .' [Citation.]" (Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140, 146.) As our Supreme Court has stated: "It is clear that the law of the case doctrine can apply to pretrial writ proceedings. When the appellate court issues an alternative writ, the matter is fully briefed, there is an opportunity for oral argument, and the cause is decided by a written opinion. The resultant holding establishes law of the case upon a later appeal from the final judgment. [Citations.]" (Kowis v. Howard (1992) 3 Cal.4th 888, 894.)
As recounted above, on July 1, 2009, this court issued an opinion in defendants' second petition for writ of mandate directing the trial court to set aside its order denying defendants' motion for summary judgment/summary adjudication and to enter a new order granting the motion in part. We concluded, as a matter of law, that Siciliano had failed to establish a triable issue of fact as to his interference claims to the extent those claims were based on alleged defamatory statements. We left open whether Siciliano could establish a triable issue of fact based on interference under a theory of fraudulent inducement.
2. Standard of Review
We review de novo the trial court's order granting summary judgment. (Mcintosh v. Mills (2004) 121 Cal.App.4th 333, 337-338.) We are not bound by the trial court's reasoning, but we affirm the judgment if the defendants were entitled to summary judgment as a matter of law, even if the trial court's reasons for granting summary judgment were in error. (ibid.) In our review, we apply the same three-step process as does the trial court: "'First, we identify the issues framed by the pleadings . . . .'" (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.) Second, we "'determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. . . .'" (ibid.) Third, we "'determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]' [Citation.]" (ibid.)
3. issues Framed by Pleadings
Siciliano alleged causes of action against defendants for intentional interference with contract and intentional interference with prospective economic advantage.
The elements of a cause of action for interference with a contract are: "'(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. [Citations.]' [Citation.]" (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 343-344.) "An action will lie for the intentional interference by a third person with a contractual relationship either by unlawful means or by means otherwise lawful when there is a lack of sufficient justification. [Citations.]" (Herron v. State Farm Mutual ins. Co. (1961) 56 Cal.2d 202, 205.) Such an action may be brought for intentional and unjustifiable interference with an attorney's contingent fee contract. (id. at pp. 205-206.) "Whether an intentional interference by a third party is justifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances including the nature of the actor's conduct and the relationship between the parties. [Citations.] Justification is an affirmative defense . . . . [Citations.]" (id. at pp. 206-207.)
The elements of a cause of action for intentional interference with prospective economic advantage are similar: "'"(1) [A]n economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant." [Citations.]' [Citation.]" (LiMandri v. Judkins, supra, 52 Cal.App.4th at p. 339.) In addition, "a plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiff's expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself." (Della Penna v. Toyota Motor Sales, U.S.A., inc. (1995) 11 Cal.4th 376, 393 (Della Penna).)
In his complaint, Siciliano alleged that Roupwatie had retained him to represent her in the prosecution of her personal injury claims, and under their written fee agreement, she granted Siciliano a lien against all monies collected on her behalf. He further alleged that defendants knew of Roupwatie's attorney-client relationship with him and interfered with that relationship by advising her that he was not representing her best interests; that he was incompetent; that a lesser fee would be charged her if she terminated her relationship with him and entered into a relationship with Artiano and Stutz; and that Siciliano's fee could be reduced in spite of the written fee agreement. Siciliano further alleged defendants told Roupwatie that for Chanda to present a claim for loss of consortium, she would have to terminate her attorney-client relationship with Siciliano and enter into an attorney-client relationship with Stutz and Artiano. Defendants denied Siciliano's allegations. The pleadings put into issue the alleged causes of action for interference.
4. Artiano and Stutz's Showing
Artiano and Stutz moved for summary judgment on the grounds that undisputed evidence established (1) the Singhs decided to discharge Siciliano before they ever met Artiano, and (2) no reasonable inference that Artiano or Stutz induced the discharge could be drawn from events that occurred after the discharge.
At his deposition, Siciliano testified that the basis for his allegation that Artiano had told Roupwatie Siciliano was incompetent was conversations with Chanda two or three months before Artiano took over the case, in which Chanda had said he had spoken with "numerous attorneys" who "all said that they didn't like what they were hearing," and that "he had spoken with an attorney and the attorney had told him that [Siciliano] was incompetent." Siciliano testified he had replied to Chanda, "'Look, you know what, if you're not satisfied with the services, there's a resolution. Get somebody else.'" Siciliano admitted Chanda had never mentioned the names of any lawyers to whom Chanda had spoken.
When asked what facts supported his allegation that Artiano had spoken to Roupwatie about reducing Siciliano's fee for services, Siciliano replied, "Those are the inferences I draw from your communications to my office."
When asked what facts supported his allegation that Artiano had told Roupwatie that for Chanda to be able to bring a claim for loss of consortium, Roupwatie would have to terminate her attorney-client relationship with Siciliano and enter into a new relationship with Artiano's law firm, Siciliano replied he "based that on inferences drawn from what's occurred . . . ." Siciliano further replied he had told Chanda that such a claim would expose Chanda's private life with his wife, and Chanda had declined to bring that cause of action because such exposure would be against his religion.
In addition, on July 7, 2005, Siciliano wrote Chanda a letter summarizing the actions taken in the proceedings thus far. The letter stated, "Given my telephone conversations with you over the past few months, it has become increasingly obvious that you have sought the advice of numerous other attorneys as you apparently doubt my ability to obtain the best possible results for your wife. I am unwilling to advance any further costs on this matter until such time as we have a commitment from you that this office will be allowed to see this matter to conclusion." Siciliano also discussed Chanda's potential action for loss of consortium. The letter concluded: "Consequently, it is strongly recommended that you seek independent legal counsel with regard to your potential claim for loss of consortium."
Roupwatie provided a declaration stating she and Chanda had decided to replace Siciliano "before [they] ever met [Artiano] or anyone from the Stutz Firm." Artiano stated in his declaration that July 9, 2005, was the first time he or anyone at his firm had ever met with or spoken to the Singhs.
5. Geile's Showing
Geile moved for summary judgment on the ground there were no triable issues of material fact because undisputed evidence established that (1) he did not induce the breach of Siciliano's contract with Roupwatie or interfere with Siciliano's prospective economic advantage; (2) Siciliano did not allege that Geile engaged in independent wrongful or unlawful conduct; and (3) Geile did not make any of the statements Siciliano attributed to him. In his separate statement of undisputed facts, Geile asserted the Singhs had decided to discharge Siciliano before they ever met Geile, Geile did not induce Roupwatie to discharge Siciliano, and Geile did not say the things to Roupwatie that Siciliano alleged.
In support of his motion, Geile provided declarations from himself and Roupwatie. Roupwatie declared that the first time she ever met Geile was at the office of Artiano and Stutz on July 9, 2005, and she and Chanda had decided to replace Siciliano before she ever met or spoke to Geile. She stated that no one had ever made the statements to her that Siciliano alleged in his complaint. Geile stated that in late June 2005, he was asked to consider taking over the case, but he declined. Geile spoke to Chanda about Roupwatie's case and about bringing a cause of action on Chanda's behalf for loss of consortium. Geile then referred the case to Artiano and agreed to stay involved in the case, for which he would receive a portion of Artiano's attorney fees. Geile thereafter worked 123 hours on the case. Geile denied that he had induced Roupwatie to discharge Siciliano. He denied that he had ever made the statements that Siciliano had alleged in his complaint.
6. Shifting of Burden
Based on the showings defendants made, as described above, we conclude that defendants made a prima facie showing they had established a complete defense to Siciliano's claims. The burden therefore shifted to Siciliano to establish that a triable issue of fact existed. (Todd v. Dow, supra, 19 Cal.App.4th at p. 258.) And, as discussed above, law of the case limits the issue to whether Siciliano has shown a triable issue of material fact as to fraud in the inducement as a basis for his interference claim. (Kowis v. Howard, supra, 3 Cal.4th at p. 894.)
Siciliano conceded that he based his claims against Artiano and Stutz on his own deposition testimony and responses to interrogatories. In his deposition, he relied on statements Chanda made to Siciliano, letters Artiano wrote to Siciliano on and after July 12, 2005, and "inference drawn from what has occurred with the file."
In his statement of undisputed material facts, Siciliano asserted he was still representing Roupwatie when she met with Artiano and Stutz on July 9, 2005, and they knew Siciliano was still representing her on that date because they had her sign a substitution of attorney form. It was undisputed that throughout the representation, Siciliano's dealings were primarily with Roupwatie's husband, Chanda; Siciliano met Roupwatie only once after their initial meeting and never corresponded with her in writing.
In his separate statement of disputed and undisputed material facts in opposition to Geile's motion for summary judgment/summary adjudication, Siciliano disputed Geile's assertion that Geile did not induce Roupwatie to discharge Siciliano. As the basis for fraud in the inducement theory, Siciliano stated, "Circumstantial evidence demonstrates a reasonable inference that Geile induced Siciliano's discharge by telling Roupwatie that she could reduce the total attorney's fees in her case to one-third . . . that she could receive as a larger monetary recovery the 6 2/3% (i.e. 7%) difference between Artiano and Siciliano's contingency fee . . . and that Siciliano would no longer be on a contingency fee basis and that his fees would not be tied to or based upon any recovery she made . . . ."
Siciliano argues that summary judgment was granted on the basis that he had failed to allege independent wrongful conduct to support his interference claims. However, during argument on the motion for summary judgment, he contended that "there were two underlying wrongful conducts that were alleged in the original Complaint," and identified those wrongful conducts as slander and fraud. The trial court stated: "Counsel, here's the Court's reasoning on this: There was a conversation between Mr. Singh, who is deceased, and various defendants. Mr. Singh cannot tell us what took place in that conversation. The various defendants have told us their version of what happened in that conversation. There were inferences that could be drawn that would support the plaintiff's version of what happened in that conversation. The Court of Appeal has said those inferences are insufficient to survive summary judg[]ment in this case. [¶] So any cause of action which is based on a trier of fact coming to some conclusion about what took place and those conversations are not surviving. . . . Quantum meruit survives. But all the other causes of action, no matter how you phrase it, all boil down to what was said during the conversation or conversations. And it's now the law of the case that the record does not support the trier of fact drawing the inferences necessary to keep those causes of action alive." The court continued, "Fraud in the inducement or slander, whatever, it's still what was allegedly said or not said during the conversation with Mr. Singh, for which you have no witness to support your assertions." In our independent review, we reach the same conclusion as the trial court: Siciliano's arguments, whether based on a defamation theory or a fraud in the inducement theory, rely on a chain of unsupportable inferences. We agree with the trial court that Siciliano's arguments "merely go[] over the identical grounds, the same evidence, the same arguments that have already been addressed. And that approaching it from a different legal theory gains nothing. And that if we did address it by a different legal theory, the same result is compelled by the earlier decision." At oral argument, Siciliano accused this court of failing to do its job of reviewing the record de novo, and he contends that reasonable inferences of interference should be drawn from various "facts" in the record, including, among others, (1) Roupwatie's deposition testimony that she expected to increase her net percentage of recovery based on the lesser fee provided for in her retention agreement with Stutz, and (2) letters from Artiano and Geile stating that Siciliano's fee would be based only on an hourly rate.
When a plaintiff opposes a motion for summary judgment based on inferences, "'"those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork." [Citation.]' [Citation.]" (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 12981299 [finding summary judgment in favor of defendants was proper when only evidence of fraudulent conveyances was "badges of fraud," including that the challenged transfers were to insiders, the defendants were the target of litigation at the time, and the defendants were insolvent].) A plaintiff's inference is reasonable, creating a genuine issue of material fact precluding summary judgment, "if, and only if, it implies the existence of an element more likely than the nonexistence of that element. [Citation.]" (Isner v. Falkenberg/Gilliam & Assoc., Inc. (2008) 160 Cal.App.4th 1393, 1398.) As our Supreme Court held in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, "[I]f the court determines that all of the evidence presented by the plaintiff, and all of the inferences drawn therefrom, show and imply [the existence of a required element of a cause of action] only as likely as [its nonexistence] or even less likely, it must then grant the defendants' motion for summary judgment, even apart from any evidence presented by the defendants or any inferences drawn therefrom, because a reasonable trier of fact could not find for the plaintiff." (Id. at p. 857, fn. omitted.) Here, none of the "facts" that Siciliano recited to this court amounts to more than mere speculation and none makes defendants' interference with Siciliano's interests more likely than not, independent of Roupwatie's declaration that she had decided to replace Siciliano as counsel even before she ever met Geile, Artiano, or anyone from the Stutz firm, and Geile's and Artiano's denials that they had induced her to discharge Siciliano. In short, Siciliano has failed to identify any admissible evidence that defendants made the statements attributed to them; defendants have categorically denied making such statements; and Roupwatie has denied that defendants made such statements to her.
We conclude the trial court did not err in granting the motions for summary judgment.
B. Denial of Leave to Amend
Siciliano contends the trial court erred in denying him leave to amend his complaint.
1. Standard of Review
We review the trial court's denial of leave to amend the complaint under the deferential abuse of discretion standard. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-297).
2. Additional Background
On August 15, 2008, Siciliano filed a motion for leave to amend his complaint to add allegations that defendants fraudulently induced a termination of his contract and attorney-client relationship with Roupwatie by intentionally misrepresenting to her that (1) a lesser legal fee of 33 1/3 percent would be charged to her if she terminated her contact with Siciliano and entered in to a contract with defendants; (2) all of her attorneys would be limited to this lesser legal fee when defendants intended to charge their 33 1/3 percent fee on top of and separately from Siciliano's legal fees; (3) she would obtain a larger net recovery if she terminated the attorney client relationship with Siciliano and entered into an attorney-client relationship with Artiano and Stutz because she would be paying 6 2/3 percent less in total attorney fees; and (4) Siciliano's fees could be reduced from a 40 percent contingency fee to a straight hourly rate if she terminated her contract with Siciliano and entered into a contract with Artiano and Stutz. Siciliano also sought to add allegations that defendants knew Siciliano was in the process of settling Roupwatie's claims for not less than $1 million; Siciliano was to receive a 40 percent contingency fee from such settlement; and defendants intentionally interfered with Siciliano's prospective economic advantage by inducing Roupwatie to terminate her contract and attorney-client relationship with him and by directing Siciliano to withdraw the settlement offer.
3. Analysis
As a general rule, courts should permit amendments to the complaint at any stage of the proceedings, up to and including trial. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) A party may move for leave to amend when opposing a summary judgment motion. (Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1773.) In that case, the proper procedure is for the trial court to first grant leave to amend and then to hear the summary judgment motion in regard to the amended pleading. (Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1302.)
Although case law has established a policy of "great liberality" in allowing amendments at any stage of the proceeding, "when an order granting or denying leave to amend is attacked on appeal, another policy enters the picture—that the trial court's ruling should be upheld unless there is a clear abuse of discretion. [Citation.]" (Hayutin v. Weintraub (1962) 207 Cal.App.2d 497, 505-506.) Unwarranted delay in presenting a proposed amendment "'may—of itself—be a valid reason for denial'" of the motion to amend. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)
As discussed above, Siciliano in fact relied on a fraud in the inducement theory in opposing the motions for summary judgment. In light of the undisputed evidence that supported the trial court's granting those motions, we conclude an amendment of the complaint would have been unavailing—in claiming fraud in the inducement, Siciliano necessarily relies on the same inferences we have already rejected as insufficient. We therefore conclude the trial court did not abuse its discretion in denying leave to amend.
IV. DISPOSITION
The judgment is affirmed. Costs are awarded to defendants and respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.