Marriage of Yuen

Filed 1/21/09 Marriage of Yuen CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Mark A. Juhas, Judge. Affirmed.

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Haight Brown & Bonesteel, Rita Gunasekaran and Jennifer K. Saunders for Appellant.

No appearance for Respondent Henry C. Yuen.

Dreier Stein Kahan Browne Woods George and Henry S. David; Jaffe and Clemens and Bruce A. Clemens for Respondent Molly H. Yuen.

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Molly Yuen filed a complaint in joinder adding her ex-husbands attorney as a party to her ongoing marital dissolution proceedings. The attorney, Robert J. Allan, moved under Civil Code section 1714.10 to strike the complaint in joinder, which alleged that he had aided and abetted certain fraudulent transfers of the ex-husbands assets.^[1] Allan now appeals from the trial courts denial of his motion to strike. We affirm.

BACKGROUND

In 1986, Henry Yuen petitioned for dissolution of his marriage to Molly Yuen.^[2] The trial court entered judgment of dissolution in 1987. In 1997, Molly moved to set aside the 1987 judgment and/or to divide concealed assets. In 2000, Molly and Henry entered into a stipulation resolving Mollys motion to set aside, and the court entered an order on that stipulation, requiring Henry to make spousal support payments to Molly totaling over $40 million. In 2002, Molly and Henry signed an agreement modifying the 2000 order in certain respects.

In 2005, Molly filed a motion to confirm arrearages. The trial court granted the motion and determined that Henry owed Molly over $46 million in arrearages, plus interest. We recently affirmed in part and reversed in part, concluding that certain portions of the trial courts award were erroneous but that Henry still owed Molly over $40 million in arrearages, plus interest. (In re Marriage of Yuen (10/30/08, B195293 [nonpub.opn.]).)

On May 16, 2007, Molly filed a notice of motion and declaration for joinder, seeking to join several entities and individuals, including Allan, in the dissolution action. Attached to the motion was a proposed complaint in joinder. In it, Molly alleged that Allan, acting as general counsel for Henry, has aided and abetted Henrys allegedly fraudulent transfers of assets in order to hinder, delay, and defraud Molly (and others). The claims in the proposed complaint in joinder were not based on Allans representation, if any, of Henry in the dissolution action itself, and the complaint did not allege any such representation.

Allan moved to strike Mollys notice of motion and declaration for joinder and her proposed complaint in joinder on the ground that they violated section 1714.10, which in certain circumstances requires a prefiling order before an action may be brought against an attorney for conspiracy with the attorneys client. Molly opposed Allans motion to strike on numerous grounds, including that her claims against him did not arise from any attempt to contest or compromise a claim or dispute ( 1714.10, subd. (a)), so section 1714.10 did not apply.

The trial court granted Mollys motion for joinder, allowing her to file the proposed complaint in joinder. The court then treated Allans motion to strike as a motion to strike the filed complaint.

On October 5, 2007, the court heard and denied Allans motion to strike the complaint in joinder, reasoning that Allans alleged conduct did not constitute an attempt to contest or compromise a claim or dispute. Allan timely appealed.^[3]

DISCUSSION

Subdivision (a) of section 1714.10 provides in relevant part: No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorneys representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The trial court concluded that the statute did not apply to Mollys claims against Allan because the conduct alleged did not constitute an attempt to contest or compromise a claim or dispute.

Allan contends that the trial court erred in denying his motion to strike, but Allans opening brief on appeal contains almost no arguments challenging the trial courts reasoning. Instead, the brief attributes to the trial court the proposition that section 1714.10 does not apply to transactional lawyers, and the brief then argues against that proposition. The brief also contains an extensive discussion of the statutory phrase arising from. But, again, Allans opening brief says almost nothing about the phrase any attempt to contest or compromise a claim or dispute, which was the actual basis for the trial courts decision.^[4]

We have identified only three passages in the opening brief that are addressed to the crucial contest or compromise a claim or dispute language. The first is embedded in Allans argument that section 1714.10 can apply to a transactional lawyer. Allan argues that settlement has been recognized by the California Supreme Court as a form of business transaction, so even under its own limited definition of compromise, the trial court could not hold that  1714.10 does not apply to a transactional lawyer. Even if the argument is sound and section 1714.10 can apply to a transactional lawyer, that would not show that the trial court erred, because it would not show that Mollys claims against Allan in her complaint in joinder are based on his attempts to contest or compromise a claim or dispute.

Second, Allan argues that because [l]itigation was ongoing between [Molly] and her former spouse during all the relevant times, and . . . Allans alleged misconduct is comprised of acts done in his capacity as [Henrys] attorney, to whom his duty and undivided loyalty were owed, it follows that Mollys claims against Allan for aiding and abetting his client most certainly arose from [Henrys] alleged attempt to contest or compromise a claim or dispute[.] The argument lacks merit because, although the complaint certainly does allege that Allan was one of Henrys attorneys during a period in which Henry was engaged in contesting Mollys claims, it does not follow that (1) Allan represented Henry in contesting (i.e., litigating) Mollys claims, or (2) the claims in the complaint are based on such representation, if any existed. On the contrary, the complaint does not allege that Allan represented Henry in contesting Mollys claims, and Mollys claims against Allan are not based on such representation, if any existed. Thus, this argument fails to show that the conduct on which Mollys claims are based constituted an attempt to contest or compromise a claim or dispute.

Third, Allan states that [t]he trial court rejected . . . Allans contention that his alleged acts of aiding and abetting his client arose from any attempt to contest or compromise a claim or dispute, and Allan contends that [t]o the contrary, the crux of [Mollys] allegations against . . . Allan is that he aided and abetted [Henry] in his efforts to contest, interfere with, thwart, or compromise [Mollys] ability to collect the money that he owed to her in support payments, by transferring assets. This contention is not an argument at all but rather is merely a denial of the trial courts conclusionthe trial court concluded that the complaint did not allege an attempt to contest or compromise a claim or dispute, and Allan contends that it did. In the absence of any intelligible argument for Allans position, we may treat the point as waived. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [One cannot simply say the court erred, and leave it up to the appellate court to figure out why].)

We conclude that Allans opening brief does not contain a meritorious argument against the trial courts conclusion that Mollys claims against Allan are not based on conduct that constitutes an attempt to contest or compromise a claim or dispute. We therefore affirm the trial courts order.

DISPOSITION

The order is affirmed. Allans request for judicial notice is granted. Respondent Molly H. Yuen shall recover her costs of appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

WEISBERG, J.^*

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^[1] All subsequent statutory references are to the Civil Code.

^[2] As is customary in marital dissolution actions, we will henceforth refer to the Yuens by their first names. No disrespect is intended.

^[3] The trial courts order denying Allans motion to strike under section 1714.10 is appealable. ( 1714.10, subd. (d).)

^[4] Allan advanced additional arguments concerning the phrase in his reply brief but does not explain why he failed to present those arguments in his opening brief. We therefore need not address the arguments raised for the first time in the reply brief. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [We reject this contention because, without good cause, it was not raised until the reply brief].)

^* Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.