Global Connector Research Group v. Fischer
Filed 4/12/13 Global Connector Research Group v. Fischer
CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
GLOBAL CONNECTOR RESEARCH GROUP, INC.,
Plaintiff and
Respondent,
v.
FRANK FISCHER,
Defendant and
Appellant.
G046844
(Super. Ct.
No. 06CC08868)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Gregory Munoz, Judge. Affirmed.
Request for judicial notice.
Denied.
Frank Fischer, in pro.
per., for Defendant and Appellant.
Kull + Hall, Robert F.
Kull and Kevin P. Hall for Plaintiff and Respondent.
*
* *
In
Global Connector Research Group, Inc. v.
Fischer (June 27, 2011, G042673) (nonpub. opn.), we affirmed in part
and reversed in part a judgment in favor of Global Connector Research Group,
Inc. (Global) and against Apex Equity Partners, Inc. (Apex), Belgravia Capital
Corporation (Belgravia), and Frank Fischer.
We refer to our prior unpublished opinion as Global Connector I. The
disposition in Global Connector I
was set forth in detail. After remand,
the trial court carried out that disposition in a second amended judgment.
In
this matter, Fischer alone appeals from the second amended judgment. While he argues at length that the second
amended judgment is contrary to the jury verdict, he is really challenging
became final. Fischer’s appeal borders
on the frivolous. We affirm.
Summary of Our Prior Opinion
The
facts are set forth in Global
Connector I. The following is a
summary of our discussion of the issues in that opinion.
1. Contract‑based
Causes of Action. The jury awarded
Global $430,350 for breach of written contract.
The jury found Apex liable for breach of oral contract, breach of third
party beneficiary contract, and quantum meruit, but found zero damages on those
causes of action. Although we concluded
Global could not recover for breach of written contract, we upheld the breach
of contract damages under the quantum meruit cause of action. We concluded the jury verdicts were
ambiguous, Apex and Fischer failed to object to the verdicts, and the trial
court correctly interpreted the verdict by concluding the jury intended to
award the same damages on all of the contract‑based causes of
action. We reversed the award of
contract-based attorney fees in Global’s favor because Global did not recover
for breach of contract. (
2. Fraud/Concealment
Cause of Action. In the verdicts,
the jury found Apex and Fischer liable for both intentional misrepresentation
and fraudulent concealment. The jury
returned a verdict awarding $150,000 in damages for intentional
misrepresentation and another verdict awarding zero damages for fraudulent
concealment. We concluded substantial
evidence supported the damages for fraud based on fraudulent concealment. The trial court had found the jury verdicts
were ambiguous as to whether intentional misrepresentation or fraudulent
concealment formed the basis for the award of damages. Neither Apex nor Fischer asked for the jury
to be polled or objected to the verdicts.
We concluded: “In approving the
judgment, the trial court reasonably concluded the verdict forms reflected the
jury’s intent to award the same damages for both intentional misrepresentation
and concealment. It was reasonable to
conclude the jury intended Global to recover $150,000 on the fraud cause of
action, and found zero damages for concealment only because it had already
awarded Global those damages for intentional
misrepresentation.†(
3. Interference
with Prospective Economic Advantage.
The jury awarded Global $50,000 in damages on its cause of action
against Fischer for interference with prospective economic advantage. We concluded Global could not recover under
that cause of action and reversed. (
4. Injunction
Under Business and Professions Code Section 17200. The trial court issued a permanent injunction
against Apex and Fischer under Global’s cause of action for unfair competition
in violation of Business and Professions Code section 17200. We concluded Apex and Fischer engaged in
unlawful acts or practices by committing fraudulent
concealment, and those unlawful acts or practices were sufficient to serve
as the basis for an injunction under section 17200. (Global
Connector I, supra,
G042673.)
5. Punitive
Damages. We concluded substantial
evidence supported the jury’s award of $125,000 in punitive damages against
Apex and Fischer based on fraudulent concealment. (Global
Connector I, supra,
G042673.)
6. Apex’s
Cross‑complaint. We affirmed
the trial court’s order granting Global’s motion for nonsuit on Apex’s cross‑complaint
for interference with prospective economic advantage, intentional
misrepresentation, and negligent misrepresentation. (Global
Connector I, supra,
G042673.)
7. Addition
of Belgravia
granted Global’s motion to add Belgravia and Fischer as
judgment debtors pursuant to Code of Civil Procedure section 187. The trial court found that Fischer and
Belgravia were the alter egos of Apex.
We reversed. As a consequence,
Fischer is not a judgment debtor on those parts of the judgment against Apex
alone. (Global Connector I, supra,
G042673.)
8. The
Disposition. The disposition states,
in relevant part: “We reverse the
following: [¶] 1. . . . [T]hose portions of
the Amended Judgment awarding Global attorney fees (Amended Judgment,
paragraph (8), page 4, lines 7‑9); [¶]
2. The portions of the Amended Judgment awarding Global
damages for interference with prospective economic advantage (Amended Judgment,
paragraph (4), page 3, lines 19‑22); and [¶]
3. The order granting the motion to add Belgravia and Fischer
as additional judgment debtors and those portions of the Amended Judgment
awarding judgment against Belgravia and against Fischer as judgment debtors to
Apex . . . . [¶] In all
other respects, and except as expressly provided, the judgment is affirmed.
. . .†(Global Connector I, supra,
G042673.)
In
response to petitions for rehearing, we modified paragraph 1 of the
disposition in a manner that is not relevant to this appeal.
Fischer
filed a petition for review of our opinion.
The California Supreme Court denied the petition for review. We issued the remittitur on October 11,
2011. Later, the United States Supreme
Court denied Fischer’s petition for a writ of certiorari and Fischer’s petition
for rehearing of denial of certiorari.
Following Remand
Following
remand to the trial court, Global submitted a proposed amended judgment, paragraph (3)
of which stated: “That Judgment, per the
verdicts of the jury, is awarded in favor of Fleck[
(intentional misrepresentation and concealment) of the Complaint jointly and
severally against Apex and Fischer for the sum of $150,000.00.â€
Fischer
filed objections to the proposed amended judgment. He asserted the words “intentional
misrepresentation†in the proposed amended judgment should be deleted because
“the Court of Appeal Opinion did not affirm on the basis of misrepresentation
but rather only on the basis of concealment.â€
The
trial court modified the proposed amended judgment by striking the words
“intentional misrepresentation and†and inserting the word “fraudulent†before
the word “concealment.†The court made a
few more changes, none relevant here, and, on the caption page, struck
“[PROPOSED]†before the words “AMENDED JUDGMENT AFTER APPEAL†and inserted the
word “Second,†thereby creating the second amended judgment. On March 16, 2012, the trial court
signed the second amended judgment and it was entered on the same day.
Still
unsatisfied, Fischer moved to amend or modify the second amended judgment by
striking the word “fraudulent†that the court had inserted before the word
“concealment.†He then asserted no
damages should be awarded for concealment because the jury found zero damages
on that claim. He also sought to have
the permanent injunction deleted from the second amended judgment. Fischer filed a notice of appeal from the
second amended judgment before the trial court ruled on his motion. No ruling on Fischer’s motion to amend or
modify the second amended judgment appears in the record.
Discussion
The
gist of Fischer’s argument is this: The
second amended judgment awards $150,000 in damages for fraudulent
concealment. The jury awarded zero
damages on the verdict for concealment.
The jury awarded $150,000 in damages on the verdict for intentional misrepresentation,
but, Fischer claims, that cause of action has been “entirely removed and
expunged†from the judgment. He argues
the judgment against him for concealment must be reversed for a host of
statutory, constitutional, and jurisprudential reasons. He argues that if the judgment for
concealment is reversed, then the judgment for punitive damages and the
permanent injunction under Business and Professions Code section 17200
must also be reversed.
The
sixth cause of action for fraud was based on claims of both intentional
misrepresentation and concealment. The
jury was asked to render separate verdicts on the two claims. The jury returned verdicts finding liability
for both intentional misrepresentation and concealment. The jury awarded Global $150,000 for
intentional misrepresentation, but awarded zero damages for concealment. (Global
Connector I, supra,
G042673.)
In
Global Connector I, we
stated: “Apex and Fischer argue the
judgment against them for damages based on fraudulent concealment must be
reversed because the jury found zero damages for that claim. The trial court treated the fraud/concealment
cause of action in a similar fashion as the contract‑based causes of
action and quantum meruit cause of action:
The court awarded judgment ‘in favor of [Global] and against Apex on the
sixth cause of action (intentional misrepresentation and concealment) of the
Complaint jointly and severally against Apex and Fischer for the sum of
$150,000.00.’ [¶] As with the contract‑based causes of
action, the trial court found the jury verdicts were ‘somewhat ambiguous’ as to
which causes of action formed the basis for the award of damages. Since neither Apex nor Fischer asked the jury
to be polled or objected to the verdicts before the jury was discharged, the
trial court was called upon to interpret the verdicts for intentional
misrepresentation and concealment (Woodcock
v. Fontana Scaffolding & Equip. Co. [(1968)] 69 Cal.2d [452,] 456), and
did so correctly. In approving the
judgment, the trial court reasonably concluded the verdict forms reflected the
jury’s intent to award the same damages
for both intentional misrepresentation and concealment. It was reasonable to conclude the jury
intended Global to recover $150,000 on the fraud cause of action, and found
zero damages for concealment only because it had already awarded Global those
damages for intentional misrepresentation.â€
(Global Connector I,
Thus,
in Global Connector I, we
rejected the argument the verdict’s award of $150,000 in damages was only for
intentional misrepresentation. We concluded
that the trial court correctly interpreted the jury verdict as awarding
$150,000 in damages on both the intentional misrepresentation claim and on the
concealment claim and that the jury intended Global to recover that amount on
the fraud cause of action. Following
remand, the trial court has jurisdiction only to act in accordance with the
directions of the reviewing court. (
210 Cal.App.4th 851, 859‑860.)
Since we affirmed the judgment on the sixth cause of action based on
fraudulent concealment, the trial court carried out our directions by signing
the second amended judgment awarding $150,000 on the sixth cause of
action.
Fischer’s
appeal is a backhanded way of challenging Global
Connector I. Fischer spends
literally dozens of pages in his opening and reply briefs repeating and
dwelling on arguments we rejected in that opinion. Despite denial of both his petition for
review and petition for a writ of certiorari, he continues to argue the trial
court violated his constitutional rights,
engaged in “judicial activism,†and erred by “disregarding an unambiguous
special jury verdict of zero damages†and awarding damages for fraudulent
concealment. These arguments were not
convincing when made in the prior appeal, we rejected them in
stage, they are close to being frivolous.
Fischer
challenges the permanent injunction under Business and Professions Code
section 17200 on the additional ground he submitted a declaration to the
trial court that showed the injunction is no longer warranted. Fischer’s declaration was submitted with the
motion to amend or modify the second amended judgment, which was made after
that judgment was entered. No ruling on
the motion appears in the record. The
second amended judgment as entered correctly includes the permanent injunction.
Finally,
we categorically reject Fischer’s argument that the trial court did not follow
the directions of our prior opinion. The
amendments and modification requested by Fischer, which would have left Global
with no recovery on the sixth cause of action, were contrary to our directions
in Global Connector I and, if
made, would have been outside the scope of the trial court’s jurisdiction on
remand.
The judgment is
affirmed. Respondent to recover costs
incurred on appeal.
FYBEL,
J.
WE CONCUR:
BEDSWORTH,
ACTING P. J.
ARONSON, J.
Research. Many documents in the record
use the name Fleck Research instead of Global.
(Global Connector I,
that we take judicial notice of a minute order, filed August 23, 2012, in
Equity Partners, Inc. (Super. Ct. Orange County, No. 06CC08868), a
copy of which is attached to the respondent’s brief as exhibit A. (Evid. Code, §§ 452, 459,
subd. (a).) Alternatively, Global
moves to augment the record with this document.
We deny Global’s request for judicial notice or motion to augment the
record because Global did not file an application or motion in compliance with
California Rules of Court, rules 8.50 and 8.54(a).
