Opinion
D069307
10-19-2017
NEIL TRAN, Plaintiff and Appellant, v. ELLIOT KANTER, Defendant and Respondent.
Neil Tran, in pro. per., for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester and Darin L. Wessel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00053420-CU-PN-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed. Neil Tran, in pro. per., for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester and Darin L. Wessel, for Defendant and Respondent.
Plaintiff Neil Tran, representing himself, appeals from the judgment entered after a bench trial in favor of his former legal counsel, defendant Elliot Kanter. The court found Tran had failed to establish one or more elements of his legal malpractice claim against Kanter arising from Kanter's representation of Tran in a third-party defamation action titled Tran v. Lieu (Sup. Ct. Case No. GIC 879986 (defamation action)). As we explain, we affirm the judgment because Tran has failed to provide an adequate record to review any alleged errors he raises in connection with it.
OVERVIEW
This overview is taken primarily from the court's statement of decision (SOD) following bench trial.
Tran initiated this legal malpractice action against Kanter in June 2013. Kanter was the sixth or seventh lawyer retained by Tran to represent him in the defamation action. When Kanter took on that representation, discovery had long since closed. In the defamation action, the jury in 2012 returned a verdict against Tran finding Tran neither suffered severe emotional distress in connection with his cause of action for intentional infliction of emotional distress (IIED) nor showed constitutional malice in connection with his defamation cause of action.
In the instant case, Tran asserted a single cause of action for legal malpractice against Kanter arising from the defamation action. In his five-page verified complaint, Tran alleged that Kanter failed to represent him competently in the defamation action, including in connection with posttrial motion work; that Kanter failed to communicate with him and seek his input or advice in preparing the case for trial; that Kanter "failed to exercise reasonable care and skill in conducting the trial . . . and neglected to present available evidence that was competent and relevant to the issues" in that action; and that if Kanter allegedly had not breached his duty to exercise reasonable care, judgment in the defamation action would have been in Tran's favor.
After a three-day bench trial that took place in late September 2015, the court ruled against Tran on his legal malpractice claim. In so doing, the court found it did "not believe wide swaths" of Tran's testimony, which the court also described as "farfetched and not credible." In its 11-page, single-spaced SOD, the court reviewed the evidence and then ruled in part as follows:
"The court finds that, although he [i.e., Tran] proved Kanter could have done a better job, plaintiff failed to carry his burden to prove by a preponderance of evidence that careful management and proper prosecution of the underlying defamation case would have resulted in a favorable judgment and collection thereof. In the absence of these latter elements, plaintiff failed to prove cognizable damage, and therefore the malpractice claim fails. Di Palma v. Seldman, 27 Cal.App.4th 1499, 1506-07 (1994). At most, plaintiff proved speculative harm, and thus the claim of professional negligence fails. Jordache Ents. v. Brobeck, Phleger & Harrison, 18 Cal.4th 739, 749-50 (1998).
"It is ironic that one of the criticisms plaintiff leveled at Kanter was his failure to offer more evidence in the underlying case. This is a malpractice case in which the evidence offered was scant: plaintiff offered only 6 witnesses (not including defendant), several of whom hurt his case more than they helped it. He offered only a handful of exhibits, and then only when the court suggested he do so. He criticized Kanter for not offering more copies/versions of the allegedly defamatory publication, yet acknowledged that the various versions were essentially the same as far as the gist or sting of the defamatory content, varying only in layout.
"One of the witnesses plaintiff called, Loan Tran, aka Tuyen Tran, testified the allegedly defamatory publications did not cause her to think less of plaintiff. This is evidence that the libel caused no damage. Another witness, [Phuong] Vo, did not recall hearing bad things about plaintiff. The only third party witness who did, Tina Nguyen, was clearly biased and was not credible. [Witness David] Horowitz[, who 'represented Tran in an earlier libel (2000) case',] stopped advertising with plaintiff in part because he wanted distance from controversy, and much of that was caused by plaintiff himself. The evidence preponderated in favor of a finding that any fall-off in advertising in plaintiff's newspaper followed the substantial judgment he suffered in the trial presided over by Judge Link [in the Quang matter, in which Quang obtained a "substantial verdict against Tran".] Plaintiff criticized Kanter for not calling the psych, but then failed to call him in the 'case within a case.'
"Kanter plainly erred when he failed to have the motion for new trial heard within 60 days [in the defamation action]. A careful lawyer would have telephoned the calendar clerk and insisted upon a law and motion setting before Judge Alksne[, who presided over the defamation action,] lost jurisdiction. Failing that, Kanter should have appeared before Judge Alksne on the ex parte calendar to insist on a date closer in time, and in the highly unlikely event she refused, to seek writ relief from the 4th DCA. It was not Judge Alksne's responsibility to 'babysit' Kanter; in this respect, this court disagrees with Mr. [Daniel] White[, Kanter's expert witness].
"Notwithstanding these shortcomings, plaintiff failed to demonstrate that, had the motion been timely heard, it would have been granted. Indeed, this court concludes that, on the merits, a motion for new trial would properly have been denied. There was no miscarriage of justice in the underlying verdict. This court did not believe plaintiff's testimony about having [suffered] severe . . . emotional distress, and it seems very likely the jury in the underlying case did not, either. The court finds, having seen and heard plaintiff, that he did not demonstrate the elements of IIED. The new trial motion would not have been granted.
"Judge Alksne's determination about plaintiff, as a newspaper publisher, being a limited purpose public figure, was clearly correct. The 'limited purpose' or 'vortex' public figure [is a person] who 'voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.' 'Unlike the "all purpose" public figure, the "limited purpose" public figure loses certain protection for his reputation only to the extent that the allegedly defamatory communication relates to his role in a public controversy.' Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253-254. By voluntarily seeking to make himself an opinion leader in the Vietnamese community, plaintiff easily met this criteria. In Live Oak Publ'g Co. v. Cohagan, 234 Cal.App.3d 1277 (1991), the Court of Appeal held a newspaper's managers were public figures for purposes of a slander suit, and thus were required to produce clear and convincing evidence of actual malice to support a slander action. There, the newspaper published an article about a political candidate. A supporter of that candidate accused the newspaper and its managers of intentionally garbling the article to influence the outcome of the election, intentionally 'crucifying' the candidate, and lying. (234 Cal.App.3d at pp. 1281-1282, 1287.) The Court determined both the newspaper and its managerial employees were public figures. (234 Cal.App.3d at pp. 1289-1290): '[A]n author, and especially a newspaper, often acts with the purpose of fostering public debate. " 'The Constitution specifically selected the press . . . to play an important role in the discussion of public affairs . . . .' " [Citations.] A newspaper is uniquely possessed of "sufficient access to the means of counterargument to be able 'to expose through discussion the falsehood and fallacies' of the defamatory statements. . . ." [Citations.]'
"More to the point, there was an insufficient showing Kanter did anything below the standard of care in resisting Judge Alksne's 'public figure' holding. The weight of the evidence was that he did resist it; [plaintiff's expert in this case, Leon] Saad did not testify his [i.e., Kanter's] effort fell below the standard of care on this issue. That being true, the evidence in the 'case within a case' completely failed to demonstrate constitutional malice. Thus, the jury in the underlying case was correct. The new trial motion would not have been granted.
"As between the two experts, both of whom were well prepared, the court found the opinions of Mr. White more persuasive. As noted above, the court makes this decision having considered [Judicial Council of California Civil Jury Instructions (CACI) Nos.] 219[], 220[] and 221.[] The court considers Mr. White to have vastly more jury trial experience than Mr. Saad, and finds that he was more qualified to express opinions about the matters embraced in this case. Further, the court found the reasons he gave regarding some of the tactical calls Kanter made to be more persuasive given the court's own experience presiding over nearly 100 jury trials in San Diego since October of 2008.
CACI No. 219 provides: "During the trial you heard testimony from expert witnesses. The law allows an expert to state opinions about matters in his or her field of expertise even if he or she has not witnessed any of the events involved in the trial. [¶] You do not have to accept an expert's opinion. As with any other witness, it is up to you to decide whether you believe the expert's testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert's testimony. In deciding whether to believe an expert's testimony, you should consider: [¶] a. The expert's training and experience; [¶] b. The facts the expert relied on; and [¶] c. The reasons for the expert's opinion."
CACI No. 220 provides: "The law allows expert witnesses to be asked questions that are based on assumed facts. These are sometimes called 'hypothetical questions.' [¶] In determining the weight to give to the expert's opinion that is based on the assumed facts, you should consider whether the assumed facts are true."
CACI No. 221 provides: "If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters that each witness relied on. You may also compare the experts' qualifications." --------
"For the foregoing reasons, plaintiff takes nothing from Kanter, and Kanter is entitled to file a memorandum of costs as the prevailing party. [Kanter] is ordered to prepare and submit a form of judgment consistent with the foregoing. . . . IT IS SO ORDERED."
DISCUSSION
Tran argues the court erred because he allegedly proffered sufficient evidence to support the finding that he would have obtained a better result but for Kanter's alleged negligence. We find this argument unavailing.
We note it was incumbent on Tran to provide an adequate appellate record in connection with this appeal. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [noting a party has the burden "on appeal to provide an adequate record to assess error"].) That Tran is representing himself in this appeal does not relieve him of this burden. (See Falahati v. Kondo (2005) 127 Cal.App.4th 823, 834, fn. 30 [noting pro se litigants are held to the same standard as an attorney].)
Because it was Tran's burden, as the appellant, to present an adequate record for review (see Dawson v. Toledano (2003) 109 Cal.App.4th 387, 402) and because he failed to do so, the judgment must be affirmed. (See Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) This is so because " '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citation]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); accord, Walling v. Kimball (1941) 17 Cal.2d 364, 373.) "A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9; accord, Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.)
Here, the record is silent because Tran did not provide a reporter's transcript of the bench trial. As such, Tran has not sustained his burden on appeal to show trial error, including that the court's myriad findings against him were not supported by substantial evidence. (See Denham, supra, 2 Cal.3d at p. 564; see also Do v. Regents of the University of California (2013) 216 Cal.App.4th 1474, 1492 [noting on substantial evidence review "we do not 'weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it' "].) Tran's failure to provide a trial transcript on appeal is ironic, given that he accused Kanter of falling below the standard of care in the defamation action because Kanter failed in that action to have the trial reported without Tran allegedly understanding the consequences.
We thus reject Tran's argument he proffered sufficient evidence to satisfy the but for element of his legal malpractice claim. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 (Viner) [noting to show damages proximately caused by an attorney's breach, the plaintiff must prove by a preponderance of the evidence that, "but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result"]; see also CACI No. 601 [plaintiff must prove he or she "would have obtained a better result if [defendant] had acted as a reasonably careful attorney"].)
For the same reason, we reject Tran's argument the court erred when it found he failed to prove he suffered "cognizable damage" in connection with his malpractice claim. We also deny his request that we review the "trial record" for prejudicial error, because he was in fact harmed by Kanter's alleged malpractice, for the simple reason there is no such "trial record," other than the SOD, for this court to review. In any event, we note the court in its SOD made clear and unambiguous findings that Tran was not harmed by any alleged malpractice by Kanter, which findings we presume are supported by substantial evidence. (See Denham, supra, 2 Cal.3d at p. 564.)
DISPOSITION
The judgment is affirmed. Kanter to recover his costs of appeal.
BENKE, J. WE CONCUR: McCONNELL, P. J. NARES, J.