Kao v. Dryden

Filed 9/11/08 Kao v. Dryden CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Stern, Judge. Affirmed.

George Kao, in pro. per., for Plaintiff and Appellant.

Triangle Civil Lawyers and Wayne S. Dryden for Defendants and Respondents.

__________________________

George Kao sued attorney Wayne Dryden for legal malpractice.^[1] The case was tried to the trial court which entered judgment in favor of Dryden. We affirm.

FACTS

In July 2001, Kao rented a room from Lung and Suzanne Chang. In August 2003, Kao, who was initially represented by attorney James Kim, filed a complaint against the Changs for civil harassment and intentional infliction of emotional distress based upon allegations, among others, that the Changs had splashed soapy water on the floor causing him to slip and fall, and threw toxic powder on [his] underwear . . . [causing him] to suffer itching sensations and mental trauma, and sprayed toxic gas into [his] room through the window causing a fire department hazmat team to respond to the premises on one occasion, and causing him to require medical treatment for a lesion or tumor in his liver.

In March 2004, the trial court granted attorney Kims motion to be relieved as Kaos attorney of record. In April or May 2004, Kao met Dryden at a social event, and Dryden agreed to talk to Kao about his case. Although they could not come to terms on a retainer agreement, Dryden agreed to help Kao prepare for a then-pending status conference, and to help Kao prepare an exhibit book. Dryden appeared with Kao at a status conference in May 2004, following which Dryden did not hear from [Kao] for a period of time. When Kao returned to Drydens office, he indicated that his case had been designated a limited jurisdiction matter.

In October 2004, Kao signed an agreement retaining Dryden to pursue Kaos claims against the Changs. In November 2004, Kao signed a substitution of attorney indicating that Dryden had taken over as his attorney of record. Dryden thereafter prepared for trial by deposing Lung and Suzanne Chang, and Francisco Cervantes, a member of the fire department hazardous materials team that had responded to Kaos room. Dryden also served subpoenas on Kaiser Permanente in an attempt to obtain Kaos medical records.

In September 2005, Kaos claims against the Changs were tried to the trial court, the Honorable Ray Hart, presiding. During Kaos case-in-chief, Dryden presented testimony from Kao and Cervantes. The Changs moved for nonsuit on the ground that Kao had failed to present any evidence (e.g., a medical expert) tending to prove that Kaos physical ailments were caused by any act committed by the Changs. Judge Hart found there was insufficient evidence to tie the incidents alleged by plaintiff Kao to the defendants. He concluded that plaintiffs case was based on speculation. The trial court granted the Changs motion.

In April 2006, Kao represented himself and sued Dryden for legal malpractice. In April and May 2007, Kaos legal malpractice claim against Dryden was tried to the trial court, the Honorable Michael Stern, presiding. Dryden testified in his own behalf. On May 15, 2007, Judge Stern signed and entered a judgment in favor of Dryden on the ground that Kao had failed to prove his case-within-a case which was a necessary predicate to prove his legal malpractice claim. More specifically, Judge Stern found that Kao had failed to prove that the Changs did the acts Kao alleged or that the acts had caused Kaos physical ailments. The court also noted in its ruling that Kaos alleged damages a liver tumor or lesion -- was diagnosed . . . in July 2002, which (according to the Complaint in the underlying action) is months before the alleged activities by the Changs was initiated in fall 2002.

Kao filed a timely notice of appeal.

DISCUSSION

I. Kao fails to demonstrate prejudicial error in the trial courts decision not to issue a bench warrant for Lung Chang

Kao, who is still in pro. per. on appeal, contends the judgment in favor of Dryden must be reversed because Judge Stern denied Kaos request to issue a bench warrant to compel Lung Chang to appear as a witness at trial. We summarily reject Kaos assignment of error because his opening brief on appeal does not explain how the testimony of the party who he sued in the underlying civil harassment action, Lung Chang, would have or could have made a difference in the outcome of the legal malpractice trial. (Cal. Const., art. VI,  13 [a judgment shall not be reversed because of an error unless the error is prejudicial; and see, e.g., Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1678 [it is appellants burden to show prejudice].)

II. Kao fails to demonstrate error in the testimony he solicited from his expert

During the legal malpractice trial, Kao called attorney Rhonda Walker to testify regarding the standard of care. During Walkers testimony on direct examination, Kao asked Walker whether Drydens decision not to call the Changs as witnesses during the underlying harassment trial had been below the standard of attorney practice. Walker answered that she did not know because she did not know the particular circumstances which led Dryden to make that decision.

Kao contends the judgment in favor of Dryden must be reversed because Walker gave negative statement against Kao. We reject Kaos argument because he cites no legal authority to support the proposition that an appellant can assign error to testimony given by his own expert witness on direct examination, in response to questions the appellant himself asks.

III. Kaos assertion that Dryden lied does not warrant reversal

We summarily reject Kaos contention that the judgment in favor of Dryden must be reversed because Dryden lied in trial. The trier of fact, in this case Judge Stern, has the exclusive power to determine whether a witness gave a truthful testimony, and a court of appeal cannot substitute its assessment of credibility for the trial courts view of a witnesss honesty. (See, e.g., Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.)

A fair reading of Judge Sterns written judgment after the bench trial indicates that if he found anything about Dryden, it was that Dryden was a believable witness.

IV. The trial court correctly determined Dryden did not agree to represent Kao until the spring of 2004

Kao contends the judgment in favor of Dryden must be reversed because the trial court missed the interpretation that Dryden pulled out as Kaos attorney just three days before Kaos underlying harassment case was first set to go to trial in spring 2004. We reject Kaos contention for three reasons. First, his contention that the trial court missed this point is just plain wrong. Dryden testified, and the court specifically found, that Dryden did not agree to represent Kao at trial in the spring of 2004. We must accept this testimony; as we explained above, we cannot reevaluate the credibility of a witness. Second, even if Kaos representation were true, he fails to explain how Drydens purported wrongful departure from the underlying harassment case in spring 2004 affected the outcome of the harassment case which went to trial in late fall 2005. Third, Kao does not explain how that misconduct caused Kao to lose his underlying harassment case.

V. The trial court properly found that any failure to present evidence or testimony about Kaos tumor was not malpractice

Kao also appears to complain that the judgment should be reversed because the trial court did not give appropriate consideration to the allegation that Dryden failed to subpoena doctors to testify about Kaos tumor which would have supported his damages claim. Again, he is wrong.

The trial court found any failure by Dryden as to this issue did not amount to negligence for a number of reasons. Without stating all of them here, the most notable is that any evidence which was admitted at the legal malpractice trial or could have been admitted at the underlying harassment case did not prove that the damages were caused by the Changs as Kao was diagnosed with a liver lesion or tumor in July of 2002, which was months before the malfeasance he alleges was undertaken by the Changs. In addition, the doctor who testified in the legal malpractice case indicated he could not determine the cause of the cyst. The trial court thus considered this issue and correctly found it did not amount to negligence on Drydens part.

VI. Drydens concession was not prejudicial

Kao contends the judgment in favor of Dryden must be reversed because Dryden conceded during the underlying harassment trial that Kaos damages absent proof that the Changs caused Kaos medical injury were limited to a flat tire and a broken tail light. This argument, like all of Kaos other arguments, fails because Kao does not point to any evidence in the record tending to prove that the Changs did, in fact, cause Kaos medical condition. In other words, in order for Kao to have won his underlying harassment case, he needed to prove the Changs caused his medical injury. This means, in order to prove his case-within-a-case in his legal malpractice case, he also needed to prove that the Changs caused his medical injury. Kaos presentation during the legal malpractice trial did not include substantial evidence proving his underlying claims against the Changs. This omission was fatal to Kaos case in the trial court, and is fatal to his current appeal.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] Our references to Dryden include Triangle Lawyers Incorporated.