Fink v. Moreno, Becerra & Guerrero

Filed 5/23/08 Fink v. Moreno, Becerra & Guerrero CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Shook, Judge. Affirmed.

David Fink, in pro. per., for Plaintiff and Appellant.

Gordon & Rees, Gary J. Lorch and Yaron M. Tilles for Defendants and Respondents.

_____________________________________________

Plaintiff David Fink appeals from a judgment that dismissed his third amended complaint after a demurrer to it was sustained without leave to amend. The judgment was entered in favor of three defendant law firms, Moreno, Becerra & Guerrero, Inc., Moreno, Becerra, Guerrero & Casillas, Inc., and Moreno, Becerra & Casillas, Inc. The judgment was also entered in favor of defendant attorneys Danilo J. Becerra, Gregory W. Moreno, and Michael A. Guerrero.^[1] Plaintiff challenges both the decision to sustain the demurrers to his various causes of action, and the trial courts rulings on discovery motions.

The origin of this case is a suit that plaintiff filed in the United States District Court, Central District of California. The defendants represented plaintiff for a time in that federal case and then successfully moved to withdraw from their representation. We address the question whether a federal courts decision to permit an attorney to withdraw from representing a client in a federal case can be the basis of a collateral estoppel defense when that same client sues the attorney in a California state court and alleges that the attorney breached their federal case retainer agreement by withdrawing from representation.

Based on Californias Rules of Professional Conduct respecting attorney withdrawals from employment, and applicable law concerning collateral estoppel, we conclude that a collateral estoppel defense to plaintiffs breach of contract cause of action is permissible in this case.

We also conclude that the demurrers to plaintiffs other causes of action were properly sustained without leave to amend. Additionally, all but one of the discovery issues raised by plaintiff in this appeal are either moot or have not been properly briefed by plaintiff, and as for the one discovery issue that we address on its merits, there was no abuse of discretion in the trial courts decision on that discovery matter. We will therefore affirm the judgment of dismissal.

BACKGROUND OF THE CASE

1. Introduction

Essentially, the claim by plaintiff in this case is that because defendants withdrew from their representation of him in his federal suit, he had to prosecute that suit by himself and he received a judgment that was far less than what he would have received had defendants continued to represent him.^[2]

After several attempts by plaintiff to file a complaint against defendants that would withstand demurrers, the trial court sustained defendants demurrer to the third amended complaint without leave to amend and entered judgment for defendants.

2. Trial Court Proceedings

Plaintiff filed the instant suit on March 23, 2004. On May 5, 2004, he filed a first amended complaint. Defendants general demurrers prompted the filing of additional amended complaints until plaintiffs third amended complaint became the operative one. That complaint asserts causes of action for breach of the parties federal case retainer agreement, fraud, and interference with prospective advantage,^[3]and it alleged the following.

When plaintiff contemplated hiring defendants, they represented to him that they prepare each of their cases as if it will not settle and must be tried, and he relied on that representation in hiring them. The defense attorneys in the two federal cases mounted a vigorous defense, and the misconduct of the defense attorneys in the Ylst case increased the cost of prosecuting that case. Trial was set to begin in the Ylst and Rice cases in early 1999. But in August or September 1998, the defendants cancelled the remaining depositions in the federal cases, stopped advising plaintiff of the status of the cases, and gave plaintiff an ultimatum to either dismiss the Rice case or they would withdraw as his attorneys of record. Plaintiff dismissed the Rice case, but nevertheless, defendants made a motion to withdraw as his attorneys of record in the Ylst case and their motion was granted by the federal court. After defendants withdrew as his attorneys of record, he was not able to retain new counsel to prosecute the Ylst case because each prospective new attorney would decline to represent him after they contacted defendants to discuss plaintiffs case. Ultimately, he was left to represent himself in the Ylst case. As a result, his evidentiary presentation lacked expert testimony on past and future medical costs and wages because he did not have an economist and someone to testify as to his life expectancy.

Because of his inability to properly prepare the case for trial, the recovery he received was significantly less than what he would have received had he been represented by defendants. On October 31, 2003, the federal jury determined that two of the six Ylst defendants used excessive force on him and it awarded him $100,000. The award will not cover the cost of his medication over his lifetime.

The trial court sustained defendants demurrers to all of the causes of action and determined that plaintiffs third amended complaint could not be amended to state a viable cause of action. Additionally, while the demurrers to plaintiffs various amended complaints were pending, the parties propounded discovery on each other and the trial court decided the various discovery motions that evolved from those discovery requests.

On December 15, 2006, the court filed a judgment of dismissal of the third amended complaint, and thereafter plaintiff filed this timely appeal.

DISCUSSION

1. The Doctrine of Collateral Estoppel Applies to Plaintiffs
Cause of Action for Breach of Contract

a. Relevant Law on Motions to Withdraw As Attorney of Record

As noted above, this appeal raises the question whether the decision of a federal court to permit an attorney to withdraw from representing a client in a federal case can be the basis of a collateral estoppel defense when the client sues the attorney in a California state court and asserts that the attorney breached their retainer agreement by withdrawing from the federal case. We begin our analysis of that question by noting the relevant federal and California law on attorney motions to withdraw.

Even with client consent, attorneys in federal court may not withdraw from a case except with leave of court; and written notice of a motion to withdraw must be given to the client and the other parties in the case. (Schwarzer, Tashima, Wagstaffe, Cal. Practice Guide: Federal Civil Procedure Before Trial (The Rutter Group 2008) s 12:190, 12:198, pp. 12-66.3, 12-66.4.) Here, defendants gave the required notice of their motion to withdraw. Federal courts require adequate grounds for excusing an attorney from further representation of a client, and usually apply state rules when deciding motions to withdraw. (Id. 12:192, p. 12‑66.4.)

The State Bar of Californias Rules of Professional Conduct, rule 3-700(A) states that if a tribunal requires that an attorney have permission to withdraw from representation, the California attorney must obtain that permission. California Code of Civil Procedure section 284 states that an attorney in an action or special proceeding may be changed before or after a final determination in a case either by consent of both the attorney and the client, or [u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other. Rule 3‑700(C)(1)(d) of the Rules of Professional Conduct (Rule 3‑700(C)(1)(d)), states that withdrawal from representation with permission of the tribunal is permitted when, among other things, the client renders it unreasonably difficult for the [attorney] to carry out the employment effectively.

In their federal court papers, defendants cited rule 3-700(C)(1)(d) as the basis of their motion to withdraw as attorneys of record. Plaintiff and the defendants have provided this court with copies of their federal court papers respecting defendants motion to withdraw. The papers number in the hundreds, and they include many and varied allegations by plaintiff and defendants respecting the tenor and effectiveness of their working relationship in the federal case. From that information, the federal court determined the defendants would be permitted to withdraw from plaintiffs case. It is therefore reasonable to infer that the federal court determined that plaintiff was render[ing] it unreasonably difficult for the [attorney] to carry out the employment effectively. (Rule 3‑700(C)(1)(d).)

b. Elements of Collateral Estoppel

The doctrine of collateral estoppel precludes the relitigation of an issue that was litigated and decided in a prior proceeding. The issue which defendants seek to prevent plaintiff from litigating in the instant case is whether defendants had the right to withdraw their representation of plaintiff in plaintiffs federal lawsuit. Stated another way, the issue is whether plaintiffs conduct in the federal case made it unreasonably difficult for defendants to effectively carry out their duties of employment in that case. The doctrine of collateral estoppel is applicable in California courts to decisions of issues made by federal courts. Where dispositive factual issues are actually litigated and resolved in the federal action, the losing party is estopped to relitigate those issues in a subsequent state action. (Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1232.) Full faith and credit is given to the final judgments and orders of a federal court. (Levy v. Cohen (1977) 19 Cal.3d 165, 172.) Indeed, collateral estoppel is applicable even when a California court believes that the federal court decision is erroneous. (Martin v. Martin (1970) 2 Cal.3d 752, 763; Lumpkin at p. 1232.)

Defendants defense of collateral estoppel to plaintiffs cause of action for breach of the parties retainer agreement caused us to question whether a prior courts ruling on an attorneys motion to withdraw from representation is the type of issue to which collateral estoppel can reasonably be applied. However, given the factual nature of rule 3-700(c)(1)(d)s provision for withdrawal when a clients conduct renders it unreasonably difficult for the [attorney] to carry out the employment effectively, it is clear to us that under California law, collateral estoppel can be used as a defense if the elements of collateral estoppel are shown to exist. Under California law, the doctrine of collateral has five elements. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341-342, Lucido.)

First, the issue sought to be precluded from being relitigated must be identical to one decided in a former proceeding. The question is not whether the ultimate issues or dispositions in the proceedings are the same. The question is whether identical factual allegations are at stake in both proceedings. (Lucido at 342.) A former judgment . . . is a collateral estoppel on issues which were raised [in the prior proceeding] even though some factual matters or legal arguments which could have been presented were not. (7 Witkin Cal. Procedure, Judgment, 359.) If an issue was decided in a prior proceeding, it is binding even though a litigant did not present in that prior case a matter that would have produced the opposite result. (Price v. Sixth District Agricultural Assn. (1927) 201 Cal. 502, 511.)

Here, the sole ground for plaintiffs cause of action for breach of the retainer agreement is the law firms withdrawal as his attorney in the federal case. The cause of action states the breach occurred on March 27, 2000 (the date the motion to withdraw was granted). In the cause of actions own words, the law firms failure and refusal to perform its obligations under the contract constitute a breach of contract. A cause of action implicitly asserts that there is no defense to it. Thus, an issue necessarily raised by plaintiffs cause of action for breach of the retainer agreement is identical to one raised in the federal case, to wit, whether plaintiffs conduct made it unreasonably difficult for the defendants to continue to represent plaintiff effectively. Although plaintiff contends that defendants misrepresented facts to the federal court in connection its motion to withdraw, plaintiff took the opportunity to contest the alleged misrepresentations when he filed his two sets of opposition papers to the motion to withdraw.

The second element of collateral estoppel is that the issue sought to be precluded from being litigated in a case must have been actually litigated in the former proceeding. That requirement is also met here. The question whether plaintiffs conduct was making it unreasonably difficult for defendants to represent him effectively was discussed at great length at a status conference held prior to the filing of defendants motion to withdraw. The question was then rehashed in the papers filed by the defendants and plaintiff in support of, and in opposition to, the motion to withdraw, and was decided by the federal court. Although the federal court did not, in its order granting the motion to withdraw, specify on what ground it was granting the motion, rule 3‑700(C)(1)(d), the problems between the law firm and plaintiff were the grounds for the written motion to withdraw. It is reasonable to infer that the ground for the motion was the basis of the order granting the motion.^[4]

Third, the decision in the prior proceeding must be final and on the merits. Here, plaintiff did not move for reconsideration of the motion to withdraw, nor did he appeal or file a writ concerning the decision permitting the law firm to withdraw, and the federal case moved to a final conclusion on its merits.

Fourth, the party against whom issue preclusion is sought is the same as a party to the prior proceeding or in privity with that party. That requirement is obviously also met here. Plaintiff was a party in the federal case.

Fifth, the issue must have been necessarily decided in the former proceeding. This element of collateral estoppel has been construed to mean that the issue was not entirely unnecessary to the judgment. (Lucido, supra, 51 Cal.3d at p. 342.) Here, the federal case was not proceeding well because of the problems between defendants and plaintiff. Permitting defendants to withdraw furthered the progress of the case. Moreover, where else will the issue of a right to withdraw first be raised if not in the very case in which the attorney is representing the client and seeks to withdraw from that representation? Necessarily and logically it is raised in the very case in which the attorney believes that withdrawal is the right course. The issue is unique because it must be decided by the judge handling the former casethe very person who is in the position to determine whether withdrawal is proper. Thus, we find this fifth element has also been shown here.

In addition to these five elements of the doctrine of collateral estoppel, there are three public policies that factor into deciding whether the doctrine should be applied in a given case. Collateral estoppel is applied if its application will preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment from vexatious litigation (Lucido, supra, 51 Cal.4th at pp. 342-343.) All three policies are promoted by our ruling in this matter.^[5]

2. The Trial Court Did Not Demonstrate Partiality to the Defendants,
Nor Give Them Legal Advice

Plaintiff contends that the trial court in the instant case violated its duty to remain impartial when it questioned defendants at the hearing on their demurrer to the breach of contract cause of action in the second amended complaint. At that demurrer hearing on the second amended complaint, the court asked defendants whether, by their demurrer to plaintiffs cause of action for breach of contract, defendants were essentially asserting a defense of collateral estoppel. Defendants had asserted, in their demurrer papers, that a breach of contract cause of action cannot be viable because the federal court had already determined that defendants had a right to withdraw from representation of plaintiff. Thus, argued defendants in their demurrer, such withdrawal could not support a cause of action for breach of contract. At the hearing, the court stated that it couldnt tell if [defendants] were asserting [res judicata and collateral estoppel] in [their] papers or not. The court stated the defendants had kind of alluded to it but didnt cite any authority. The court made the same observation in its written tentative ruling, which was given to the parties prior to the commencement of the hearing. Asked by defendants whether it wanted further briefing on the issue, the court stated that rather than submitting briefing on the issue with respect to the second amended complaint, if the issue should present itself when and if plaintiff filed a third amended complaint, defendants could address it then.

Plaintiff contends that by so questioning defendants as to whether they were asserting res judicata or collateral estoppel, and telling them that they could brief the defense in a future demurrer, the court gave them dispositive legal advice that led to the sustaining of the demurrer, without leave to amend, to the breach of contract cause of action in the third amended complaint because in their demurrer to the third amended complaint, defendants presented a collateral estoppel/res judicata argument.

We do not agree that the trial court demonstrated partiality to defendants or gave them legal advice when it questioned them as to whether they were asserting collateral estoppel or res judicata to the cause of action for breach of contract, nor when it indicated the defense could be presented in a future demurrer if necessary. We view the trial courts response to defendants demurrer papers as simply attempting to understand whether defendants were asserting a particular argument.

3. The Second Cause of ActionFraud

Plaintiffs second cause of action alleges that defendants realized in August 1998 that prosecution of the Ylst case would be much more difficult and time consuming than they had expected because the Ylst defendants had presented a vigorous defense and had manufactured a criminal conviction against plaintiff (that was later overturned and expunged), to support their defense of the federal suit, and the conviction meant that damages obtained by plaintiff and attorneys fees obtained by defendants, in the federal case, would be significantly reduced. Plaintiff further alleged that defense counsel in the Ylst case contacted defendants in August 1998 and advised them that under current law, they would make far less in attorneys fees than they anticipated making when they entered into the retainer agreement with plaintiff. Plaintiff alleged defendants fraudulently concealed these financial effects from plaintiff. Plaintiff also alleged that race was a motive in defendants decision to conceal that information.^[6]

The second cause of action further alleges that between August 1998 and April 2000 (as noted above, defendants motion to withdraw was granted by the federal court in late March 2000), defendants intentionally misrepresented and fraudulently promised that they were prosecuting the federal cases, preparing the Ylst case for trial, and would try that case if necessary. In reality, defendants were concealing that they were not preparing the Ylst case for trial, and that they were preparing to withdraw their representation in the two federal cases so that they could take on numerous Rampart cases which would be more lucrative and easier to prosecute.

In sustaining the demurrer to this fraud cause of action without leave to amend, the trial court ruled it is barred by the three-year statute of limitations in Code of Civil Procedure section 338,^[7]which the court said began to run at the time of the last fraudulent act alleged in the complaint (April 2000). As noted above, the instant suit was not filed until March 23, 2004. The court rejected application of the doctrine of delayed discovery, saying it is not based on the date a plaintiff discovers the alleged fraud but rather on the date a plaintiff suspected or should have suspected that an injury was caused by wrongdoing, and the statute of limitations begins to run when the plaintiff has information that would put a reasonable person on inquiry and a plaintiff need not be aware of the specific facts necessary to establish a claim since they can be developed in pretrial discovery.

The court also pointed out allegations in the third amended complaint that demonstrate plaintiff was on notice that defendants were not inclined to pursue their representation of him in the federal cases (even though plaintiff may not have known about defendants desire to represent Rampart plaintiffs). Plaintiff alleged that in conversations he had with defendants between January 11 and November 17, 1999, defendants (1) yelled and screamed at him in an attempt to bully him into signing a substitution of attorney form; (2) made him completeand serve on the Ylst defendantsinterrogatories by himself without any supervision or prior review; (3) refused to advise him of the status of his cases for more than nine months, refused to spend or commit any money in his cases, and refused to prepare the cases for trial; and (4) refused to advise plaintiff what his Ylst case was worth, and did so for nine months after the Ylst defendants asked for a settlement offer, and then when plaintiff himself drafted a settlement offer, defendants refused to transmit it to the Ylst defendants. Plaintiff also alleged that after his conversation with defendants on November 17, 1999, defendants never contacted him again until they made their motion in federal court to withdraw as his attorneys, and on January 21, 2000, defendants intentionally misrepresented to the federal court that it had become impossible to work with plaintiff, and they used his Ylst settlement offer to support their motion to withdraw.

Based on the allegations in the third amended complaint, the trial court concluded that plaintiff was put on inquiry notice no later than January 21, 2000 as to the possibility of the type of fraud alleged. That was more than three years before the instant case was filed.

We find no fault in the trial courts analysis. The third amended complaint alleges incidents of various types (occurring both before and after defendants withdrew as attorneys of record, and occurring more than three years prior to the date that the instant suit was filed), that would have put a reasonable person on inquiry notice that defendants representation of him was far from what they had promised it would be, whatever their reason for concluding they did not want to live up that representation. (Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35.) Plaintiffs contentions that (1) he is severely disabled, (2) he takes substantial amounts of pain medication that affect his reasoning, (3) the defendants did not deliver all of their attorney files to him until May 2000, and (4) the files had been purposefully shuffled to make it more difficult for Plaintiff to detect that they committed fraud in their representation that they were prosecuting the Ylst case and preparing it for trial do not change the validity of the trial courts conclusion. The fact remains that plaintiff had three years from the time of inquiry notice to file this suit and it was not timely filed for a fraud cause of action.

4. The Fourth Cause of ActionFraud in the Inducement of a Contract

Plaintiff alleged the following in his fourth cause of action. As an enticement to have him sign defendants retainer agreement, defendants fraudulently promised him that he would receive 25% of the attorneys fees awarded by the federal court. Plaintiff also alleged that defendants further promised him that they would include, in their attorneys fees bill, the hours that plaintiff worked on his federal case and defendants would bill those hours as paralegal time. Defendants concealed from plaintiff that he was legally not entitled to attorneys fees and was not entitled to submit bills for the time he worked on his own case. The attorneys fees provision was hand written into the retainer agreement,^[8]and the paralegal provision was made orally. Defendants used plaintiff as a paralegal and had him do legal research and draft proposed pleadings in the Ylst and Rice cases. That work was done at plaintiffs residence and e-mailed to defendants.

Plaintiff further alleged that on February 23, 2004, defendant Becerra signed a declaration stating he was not seeking attorneys fees, and produced documentation that indicated defendants did not keep track of the time they worked on plaintiffs federal cases. Plaintiff alleged that he was enticed to work thousands of hours on his federal case, and defendants fraudulent promise of a share of the attorneys fees and compensation for paralegal work was a violation of the federal Fair Labor Standards and Minimum Wage Act.

In sustaining defendants demurrer to this cause of action without leave to amend, the trial court observed that causes of action for fraud are permitted when one party is not aware that a contract is illegal (such as promising to share attorneys fees), and the other party, knowing of the illegality, induced the first party to enter into the agreement. The court also noted that such a rule is applied when doing so advances public policy, but the court found that the totality of the allegations in the third amended complaint did not present good cause to apply that rule in this case. The court observed that (1) the retainer agreements hand written provision for attorneys fees to plaintiff was only initialed by him, (2) the third amended complaint suggests plaintiff was aware that attorneys fees paid to him had to be camouflaged as paralegal work, (3) public policy would not be advanced by permitting plaintiff to recover years later for work he did himself under an oral agreement when all of the other terms of the agreement were written, and (4) plaintiff was aware by January 21, 2000 that defendants had lied to him about other things, had lied to the federal court, and had breached their contract with him, and thus plaintiff was on notice, at least by that time, that the inducement promises defendants made regarding sharing attorneys fees and paying him for paralegal work might have been made with no intent to live up to those promises, yet plaintiff did not file this suit until March 2004. The court also observed that although it had dr[awn] a roadmap for plaintiff regarding the need to plead a fraud cause of action with specificity, plaintiff had not done so. Regarding plaintiffs claim for violation of wage laws, the court ruled that the claim was also not timely.

Like the trial court, we find it quite clear that the three-year statute of limitations for fraud, including promissory fraud, precludes this cause of action. The operative complaint is filled with allegations of defendants wrongdoing that occurred more than three years prior to the filing of the instant action, and it is reasonable to conclude that plaintiff should have been wary during that same period of time about the sincerity of defendants alleged promise to share their attorneys fees and pay him for paralegal work. Moreover, plaintiff did not sufficiently allege how he was injured by defendants false promise to share attorneys fees and pay him for paralegal work. He did not allege how any other attorney could have legally shared attorneys fees with him, nor did he allege how he, as a litigant, could have successfully made a claim, through another attorney, for the hours he worked on his own case. Thus, he did not allege that but for the defendants false promise, he could have obtained the same benefit by retaining another law firm. As for plaintiffs claim that enticing him to work thousands of hours for free as a paralegal is a violation of the federal laws respecting minimum wage and fair labor standards, plaintiffs appellate presentation makes no separate analysis for why a cause of action based on federal law should proceed.

5. Plaintiffs Discovery Requests and Motions

a. Plaintiffs Initial Discovery Requests and Defendants Responses

On July 15, 2004, one day after plaintiffs second service of the summons and first amended complaint (the service that we held was proper), plaintiff served each of the attorney defendants with form interrogatories. On August 19, 2004, each of the attorneys responded, as a specially appearing defendant, by objecting to the service of the interrogatories on the grounds that such service had not been made in accordance with then-section 2030, subdivision (b), which precludes propounding interrogatories on a defendant within the first ten days of when the defendant is served with the summons or has appeared, whichever first occurs, unless court approval is obtained. Defendants also argued in their response that (1) they had not yet been properly served with the first amended complaint, (2) they had filed a motion to quash service of the complaint, which had not yet been heard, and (3) until (a) a court determined that the service of the complaint was proper and (b) plaintiff properly served the interrogatories, the defendants would not respond to discovery requests.

Also on July 15, 2004, plaintiff served each of the attorneys, as well as the law firm Moreno, Becerra & Guerrero, with special interrogatories and requests for production, and served requests for admission on defendants Moreno and Becerra and on the law firm. Each of those defendants responded with the same objections the attorney defendants made to the form interrogatories, citing the relevant statutory discovery provisions.

Each of the objections posed to plaintiffs discovery requests were served by mail on plaintiff on August 19, 2004. By means of a September 3, 2004 letter to the defendants, plaintiff presented an attempt to resolve our discovery differences prior to filing a motion to compel discovery. He asserted that the defendants objections to discovery were not timely because they were not served within 30 days after service by plaintiff of the discovery requests. He also asserted his service of the summons was proper and thus his discovery requests were not premature.

The defendants responded by letter, stating they had five additional days to respond to plaintiffs discovery requests since the requests had been served by mail, citing section 1013, subdivision (a). Defendants further asserted that service of the discovery requests was not permitted until 10 days after service of the complaint on them was completed and here, plaintiff was claiming that substitute service was allegedly made on defendants and therefore such service was not complete until 10 days after the day the day the complaint was mailed to defendants after being substitute served on them. Defendants concluded that plaintiffs discovery requests were premature and that defendants were not required to respond to them, and they warned plaintiff that if he made a motion to compel responses to the discovery requests, they would oppose the motion and seek sanctions.

Thereafter, the trial court issued an order quashing service of the summons for the first amended complaint. By our earlier opinion filed on July 26, 2005, we determined the service was valid and reversed that order, remanding the case for further proceedings.

On August 2, 2005, plaintiff filed a motion to compel responses to his discovery. Plaintiff asserted that statutory provisions permit the various discovery requests to be made after a defendant makes a first court appearance, and he contended that here, defendants made their first court appearance on July 15, 2004 (their special appearances for their motion to quash). He asserted that on July 15, after the court appearances, he served his discovery requests. Plaintiff also asserted that defendants were required by the relevant discovery statutes to make an objection to each separate interrogatory, each separate request for production and each separate request for admission, and thus their general objections to the whole of the sets of interrogatories, requests for production and requests for admission were not proper. Additionally, plaintiff asserted defendants were required to respond to his discovery requests within 30 days of service on them.

Defendants response to the motion to compel was filed on August 18, 2005. They asserted (1) the trial court had no jurisdiction to hear the motion pending a remittitur from this court, (2) plaintiff had already filed a peremptory challenge to the judge who was to hear his motion, (3) plaintiff did not make an attempt to resolve the discovery issues after we issued our opinion reversing the order quashing service of the summons, (4) California Rules of Court, rule 335 required plaintiff to file a separate statement because he was seeking further responses to discovery, and (5) the sheer volume of discovery propounded by plaintiff indicated he was not acting in good faith.^[9] Lastly, defendants challenged plaintiffs contention that they had not filed timely responses to plaintiffs discovery, asserting they had an additional five days to respond since plaintiffs discovery requests were served by mail.

On October 27, 2005, the trial court placed off calendar plaintiffs motion to compel discovery, which was set to be heard on November 1, 2005, because plaintiff had filed his peremptory challenge to that trial judge. Reassignment to another Department was made the following day, and plaintiffs motion to compel was heard on February 15, 2006. The court granted the motion to compel but ruled that defendants had not waived their right to make objections to the discovery. The court found that the discovery requests were properly served even though defendants were contesting service of process, but their obligation to respond to the discovery did not occur until their motion to quash was resolved. The court warned defendants that if they presented spurious responses to plaintiffs discovery such that it would be difficult for plaintiff to prepare a motion to compel further responses in a timely manner, sanctions would be imposed on defendants.

According to defendants brief filed in the instant appeal, after the February 15, 2006 hearing on plaintiffs motion to compel, defendants responded to this initial round of plaintiffs discovery requests and plaintiff did not object to the responses or move to compel further responses, nor did plaintiff move to have deemed admitted any matter in the requests for admission that he served.

b. Subsequent Discovery Issues

At that same February 15, 2006 hearing on plaintiffs first motion to compel further responses, the court heard plaintiffs second motion to compel, which actually consisted of four motions. By the motion(s), plaintiff sought further responses to second sets of special interrogatories and requests for production that he served.

The court issued a lengthy ruling and a minute order on February 23, 2006. Plaintiffs second motion to compel discovery was denied because plaintiff failed to include a separate statement with the motion. Defendants request for sanctions was denied in the interest of justice. The court gave plaintiff leave to propound additional interrogatories and requests for production seeking information on the same topics. However, the court warned that absent some exception, it would not compel the defendants to authenticate transcripts of recorded telephone conversations between plaintiff and defendants because that discovery request would not lead to the discovery of admissible evidence.^[10] Regarding plaintiffs discovery requests that concerned defendants case files for plaintiffs federal suits, the court suggested that since defendants were claiming they could not fully answer questions regarding their legal files because they claimed to have delivered such files to plaintiff, the parties could arrange for defendants to copy the files in plaintiffs possession, at defendants expense, and that way defendants would be able to answer appropriate discovery requests about the files.

The court also granted plaintiffs motion for a protective order regarding subpoenas duces tecum that defendants served on U.C.I. Pain Management Center and the Acute & Diversified Psychiatry Medical Group, where plaintiff was treated. The motion was granted on the ground that defendants service of the subpoenas did not comply with a relevant statute. The court advised that if defendants properly served subpoenas on plaintiffs health care providers, plaintiff could file another motion for protective order and should address the issues raised by defendants in their opposition to the first motion for protective order. The court noted that if plaintiff claims emotional distress damages in this case, then a certain line of cases would support defendants discovery of plaintiffs medical history.

c. Further Discovery Motions Made by Plaintiff

On March 7, 2006, plaintiff filed notice of the resetting of his above-discussed second motion to compel discovery. His notice papers state the resetting was being filed pursuant to 2/23/06 order, and was based on the trial courts having denied plaintiffs second motion to compel discovery on the ground plaintiff failed to provide a separate statement. Plaintiffs reset papers stated that a separate statement was being filed concurrently with them. On August 11, 2006, the court denied the motion, finding that (1) the motion did not comply with the courts directive for plaintiff to serve the discovery again and file another motion to compel if defendants responses were not adequate and (2) the motion was actually a motion for reconsideration and did not comply with the requirements of section 1008 because plaintiff failed to provide an affidavit setting out new facts or law to support the reconsideration motion.

Also on March 7, 2006, plaintiff filed a motion for reconsideration of his above-discussed first motion to compel discovery. The motion for reconsideration was denied for failure to support it with new facts or law.

On May 24, 2006, plaintiff filed a third motion to compel, by which he sought responses to several of the form interrogatories he served on March 20, 2006. On August 11, 2006, the court determined it would not compel further responses to two of the form interrogatories, and it directed further responses to the others. The court declined to award plaintiff sanctions in the form of costs because he did not comply with the requirements of section 2023.040 regarding requests for sanctions.

6. Defendants Discovery Requests and Motions

After the trial court granted plaintiffs request for a protective order on February 15, 2006, respecting the subpoenas duces tecum that defendants served on Acute & Diversified Psychiatry Medical Group and U.C.I. Pain Management Center, defendants reserved the subpoenas on March 2, 2006. Based on asserted privacy rights, plaintiff served objections to the subpoenas, and on March 23, 2006, defendants filed a motion to enforce them. The motion was granted on June 21, 2006, with the court ruling the subpoenas sought information relating to plaintiffs mental state, which he had placed in issue.

On November 18, 2005, defendants served special interrogatories and requests for production on plaintiff. Plaintiff served his responses on December 12, 2005. Three meet and confer letters were issued by defendants seeking further responses to their special interrogatories and requests for production, and plaintiff responded to those letters. On March 24, defendants filed motions to compel further responses, seeking $2,330 in sanctions. Plaintiff filed opposition to the motions on April 3, 2006. By rulings made on June 19 (for the law firms motions to compel) and June 20, 2006 (for the attorneys motions to compel), the court set out the discovery requests to which further responses were due. The court awarded the law firm sanctions of $1165, and the attorneys sanctions of $1165, which total $2,330. That ruling is discussed in further detail infra.

7. Discovery Issues Raised by Plaintiff in this Appeal

On appeal, plaintiff challenges discovery rulings made by the trial court. However, given that we are affirming the ruling on the demurrers to the causes of action in the third amended complaint, the issue of the validity of the discovery orders is for the most part moot.

The bases of the ruling on the demurrers (collateral estoppel and the statute of limitations for fraud) were supported by plaintiffs own allegations contained in the third amended complaint. The discovery rulings, whether they were to plaintiffs liking or not, and whether they would be affirmed on appeal or not, could not change the fact that the right of the defendants to withdraw from representing plaintiff in the federal case had already been decided in that case and that decision was final. Likewise, discovery rulings could not change the fact that plaintiffs own allegations in his third amended complaint demonstrated that he was on notice, more than three years before he filed the instant suit, that defendants may have acted in ways that were fraudulent and injurious to him. It simply makes no difference whether the trial court was correct when it made the plaintiff respond further to discovery, or declined to make the defendants respond further to discovery.^[11]

The only exception to our conclusion might be the $2,330 in sanctions imposed on plaintiff when the court ruled on defendants motions to compel further responses to their interrogatories and requests for production. Termination of this case would not make those sanctions disappear and thus plaintiff would still be responsible for paying them.

Plaintiff states he was served with four sets of identical word-for-word form and special interrogatories, requests for admission and requests for production of documents, one from each of the attorney defendants and one from Moreno, Becerra & Guerrero, Inc. He describes the propounding of those discovery requests as an attempt to overwhelm [him]. He states he answered all of the form interrogatories and requests for admission, and provided the law firm with 156 documents related to the Ylst case. He states he did not provide a full response to numbers 1-4 in the requests for production because they sought the Ylst case files but did not provide a rationale for obtaining the approximately 100 boxes of such documents.

Our review of the record shows that the four defendants each asked for (1) the entire case file that was returned to plaintiff by them in the Ylst case, (2) the entire case file returned to plaintiff by them in the Rice case, (3) the 12 boxes of documents that plaintiffs third amended complaint alleges were returned to him, by the law firm, on April 22, 2000, and (4) any and all documents and tangible evidence, if any, relating to [the two federal cases].

Plaintiff objected to the requests on the grounds they were duplicative to each other and thus harassing, improper and designed to drain his financial resources; were overly broad and thus burdensome; and were irrelevant, ambiguous, unintelligible, and not reasonably calculated to lead to the discovery of admissible evidence. In his opposition to defendants motion to compel, plaintiff added additional objections: defendants knew he was going to sue them and therefore they had the opportunity to copy their files before they turned them over to him; since the 12 boxes were delivered to him, the Ylst case has grown to approximately 40 filing cabinet drawers of records which do not contain any documents that would further defendants discovery, and it would take months to copy them and plaintiff would have to be present, and that would interfere with plaintiffs litigating this case; defendants have not identified any documents or categories of documents that are relevant to the instant case; and plaintiff has already provided defendants with 156 documents related to the Ylst case. In response, defendants argued that the documents sought should be produced because plaintiff is suing them based on their representation of him in the federal cases, the files are the most probative documentary evidence of whether the instant case has merit, and defendants offered to provide and pay for a copy service to copy the files.

Regarding the special interrogatories that plaintiff refused to answer, one of them asked for your social security number. Your was defined as the responding party, or responding partys present and former agent, and all other such persons acting on responding partys behalf, including attorneys and investigators, if any. (Italics added.) Plaintiff objected, saying that the request was made by each of the attorney defendants and by Moreno, Becerra & Guerrero, Inc., and was thus duplicative, harassing, improper, and designed to drain his financial resources, and further was overly broad because it asks for the social security number of his past and present agents, and it is not reasonably calculated to lead to the discovery of admissible evidence. Defendants argued that each defendant can propound his own discovery because plaintiffs responses may vary depending on the propounding defendant. They further argued that plaintiffs social security number was relevant to obtaining and verifying plaintiffs medical records, but plaintiff argued defendants had already secured his medical records using his name and date of birth.

Plaintiff also refused to answer the law firms special interrogatories numbers 36 to 59 and the individual defendants special interrogatories numbers 36 to 56. Plaintiff asserted in his responses to the special interrogatories, and in his opposition to defendants motions to compel discovery, that those interrogatories (1) were asked by each of the defendants and (2) sought the same information that defendants sought in interrogatory numbers 2 to 35, and therefore were duplicative, harassing, and designed to drain his financial resources. He further asserted that the defendants statutorily mandated declarations that they filed in support of their having propounded more than 35 special interrogatories did not comply with section 2030.050 in that such section requires that a party state that none of the interrogatories in excess of 35 are being propounded for an improper purpose, such as to harass a party or needlessly increase the cost of litigation, and defendants perjured themselves in submitting such a declaration.

Defendants responded by arguing that the discovery statutes required plaintiff to move for a protective order if he asserted that the number of special interrogatories was unwarranted. ( 2030.040, 2030.050, & 2030.090.)

The trial court ruled that plaintiff would have to (1) provide the last four digits of his social security number, (2) respond, without objection, to the challenged special interrogatories, and (3) make the files in the federal cases available to defendants for them to copy at their own expense. The court explained in its written ruling that the case files are relevant to showing what work defendants did on the federal cases and what work plaintiff did on them both before and after defendants withdrew from representing him. The court further explained that the interrogatories addressed specific allegations made by plaintiff in the complaint that was operative at the time of the hearing and seek facts, persons with knowledge and documents and documents related to the contentions. The court also explained that each of the defendants is entitled to serve discovery on plaintiff to address contentions made against that defendant.

Regarding sanctions, the court found that plaintiffs refusal to comply with the discovery was without substantial justification. The court split in half the total amount of sanctions requested, apparently because the discovery motions from the law firm and the discovery motions from the three attorney defendants were similar.

We review the trial courts ruling using an abuse of discretion standard. (Save OpenSpaceSanta MonicaMountains v. Superior Court (2000) 84 Cal.App.4th 235, 245-246.) Based on the record, we find no abuse of discretion in the trial courts reasoning and ruling, both with respect to granting the motion to compel, and to its finding that sanctions, in some amount, were appropriately requested.

Normally when we review an award of sanctions, we examine the declaratory and documentary evidence presented by the moving party so that we can determine whether the amount awarded was justified. However, plaintiff has not cited us to that evidence. Therefore, we find that he has waived any issues regarding the amount of sanctions awarded.

DISPOSITION

The judgment from which plaintiff has appealed is affirmed. Costs on appeal to defendants.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KITCHING, J.

ALDRICH, J.

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^[1] Henceforth, we generally refer to the defendant attorneys and law firms collectively as defendants.

^[2] The retainer agreement between defendants and plaintiff was for representation in a federal civil rights case entitled Fink v. Ylst, which plaintiff filed in 1994. The retainer agreement was signed in December 1997. The federal case grew out of an altercation between plaintiff and several guards at a California prison where plaintiff was serving a sentence for commercial burglary. The altercation left plaintiff severely and permanently disabled. In June 1998, defendants also undertook representation of plaintiff in a second federal case, Fink v. Rice, however plaintiff dismissed that case prior to defendants withdrawal from their representation of him in the Ylst case.

^[3] Plaintiff has conceded that his cause of action for interference with prospective advantage is time barred by the two-year statute of limitations.

^[4] Plaintiff asserts that the federal court never determined whether there was cause to permit defendants to withdraw their representation of him in federal court and therefore collateral estoppel does not apply. In support of his opposition to the withdrawal motion, plaintiff cites to a reporters transcript from the status conference held in federal court prior to the making of defendants motion to withdraw. The issue of defendants continued representation of plaintiff was discussed at great length at the status conference and the judge indicated that defendants needed to make a motion to withdraw, and that based on the discussion that had taken place at the status conference the court was inclined to look favorably on such a motion. This is not the evidence needed to support plaintiffs appellate position. It is a rule of appellate review that judgments are presumed to be correct and persons challenging them must affirmatively show reversible error. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) Applying that rule here means that when plaintiff asserts that the federal district court never determined whether there was cause to permit defendants to withdraw from his case, plaintiff must support his position by citing to the portion of the federal case record that concerned the motion to withdraw, not the portion dealing with a status conference. Plaintiff did not do that and therefore he has not met his appellate burden to support his assertion that the federal court never considered whether there was cause to permit defendants to withdraw from the case.

^[5] Defendants cite to cases from other jurisdictions where courts have applied collateral estoppel when a litigant attorney claims that the granting of his or her motion to withdraw in a prior case supports a defense of issue preclusion in a subsequent case in which the attorney is sued for breach of contract or legal malpractice stemming from that very withdrawal in the prior case. However, those cases did not involve rule 3‑700, (c)(1)(d) and thus we do not rely on them in deciding this appeal.

^[6] Although he alleged race as a motive in defendants decision to conceal information, plaintiff did not allege necessary facts respecting that allegation, such as the races of the various parties, why race would motivate defendants actions, etc. Further, his appellate presentation on the matter is even less helpful. He does not present an analysis of the statutory basis (federal or state) for a cause of action based on racial discriminatory. The issue is waived for failure to properly brief it.

^[7] Unless otherwise indicated, all references herein to statutes are to the Code of Civil Procedure.

^[8] Only plaintiff initialed the handwritten attorneys fees provision.

^[9] In his opening brief on appeal, plainti