Rogozienski v. Love

BENKE

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Reversed.

INTRODUCTION

In this somewhat unusual case, the trial court granted defendant S. Michael Love's motion for a judgment notwithstanding the verdict (JNOV) on the grounds plaintiff Frank E. Rogozienski (Frank) did not show Love's conduct caused Frank any harm.

Briefly, Love is an attorney who represented Frank's former wife Shirley Rogozienski (Shirley) in their dissolution proceeding. The parties in the dissolution case stipulated the matter would be heard by a family law practitioner, James Allen, sitting as a pro tem judge.

Allen heard the case in three phases and entered a final judgment decidedly adverse to Frank's interests. After the final judgment was entered, Frank discovered that while the dissolution case was pending Love transferred his interest in a vacation home to a third party and the third party very shortly thereafter transferred that interest to Allen. When Frank brought his discovery of the transaction to the attention of Allen, Allen withdrew from the case and later, in the course of further proceedings in the trial court and here, Allen's rulings were vacated in their entirety.

In addition to obtaining vacation of Allen's rulings, Frank brought the instant civil action against Allen and Love. In a prior appeal we held Allen was protected by judicial immunity but that Love might be held liable for his conduct. On remand a jury found that Love provided Allen with a gift, that in doing so Love violated both his ethical obligations and acted negligently, and that Frank suffered $780,482 in damages.

By way of a posttrial JNOV motion, Love argued that in light of the fact Frank appealed from Allen's judgment on the merits and sought other grounds to disqualify Allen before Frank discovered the gift, Love's gift to Allen and the consequent vacation of Allen's rulings, actually benefitted Frank. The trial court agreed and granted Love the JNOV.

We reverse. Love's JNOV motion was premised on the undisputed fact that in addition to attacking Allen's ruling on the grounds Allen was disqualified by virtue of the gift, Frank also sought to have Allen's rulings vacated on other grounds, including challenges to the merits of Allen's rulings. Love argued in the trial court, and argues again on appeal, those other attacks show Frank benefitted from the gift because it allowed him to have the rulings vacated, a result Frank plainly desired. While tempting, we cannot accept Love's logic.

First, Frank's damage claim is based solely on his contention that because of the gift he lost the value of the attorney fees and costs incurred in litigating the dissolution action before Allen. While it is true Frank did not like the result he obtained from Allen, the fact he attacked the result on other grounds does not demonstrate those attacks would also be successful in vacating Allen's rulings. As we explain more fully below, we would have to engage in an impermissible level of speculation to find the other defects Frank urged would have also inevitably required reversal of Allen's rulings. Because the gift was the actual reason Allen's rulings were vacated and because we would have to speculate the other grounds would also have been successful, Frank clearly met his burden of showing the gift was the cause of his lost litigation expenses.

Second, we cannot accept Love's suggestion that by virtue of steps Frank took to vacate Allen's rulings before discovering the gift, Frank somehow waived his right to damages resulting from the gift. Frank quite obviously had no means of knowing the gift caused him damage and thus these earlier steps cannot fairly be interpreted as an expression of his intent to waive any damage caused by the gift.

In short, because of Love's conduct, Frank bore the expense of litigating his dissolution case twice. In light of that fact, the amounts Frank incurred in the first round of litigation were amounts he lost due to Love's conduct.

Love asks us to take judicial notice of the stipulated judgment by which Frank and Shirley's marriage was finally dissolved. The stipulated judgment was entered after the JNOV was granted by the trial court. In response Frank asks us to take judicial notice of attorney fees he was ordered to pay during the course of the second round of dissolution litigation and the second trial judge's resolution of disputed property issues. We deny both requests for judicial notice. At trial neither party made any argument with respect to whether the ultimate disposition of the dissolution issues was more or less favorable to Frank than Allen's disposition or that the second round of litigation otherwise had an impact on Frank's damages. Thus, the documents, which were not presented to the trial court, are not relevant to any issue raised on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

We have discussed the consequences of the gift to Allen in three prior unpublished opinions: Rogozienski v. Superior Court, D042201 [opinion October 8, 2003] (Rogozienski I); In re Marriage of Rogozienski, D045626 [opinion March 8, 2006] (Rogozienski II); Rogozienski v. Allen, D047858 [opinion March 23, 2007]. A review of those opinions provides useful background for our discussion of the issues Frank raises in the instant appeal.

A. Rogozienski I

As we have indicated, this protracted litigation grows out of the contentious dissolution of the marriage of Frank and Shirley. As we explained in Rogozienski I, "[i]n October 1997 Shirley filed a petition to dissolve the parties' marriage. In August 1998, the parties stipulated to [attorney James] Allen serving as temporary judge. Over the next four years, Allen issued decisions affecting the characterization and distribution of the parties' property interests. On November 25, 2002, the judgment of dissolution was filed including an Attachment to Judgment setting forth the court's findings and orders with respect to support and the division of property. Both parties appealed.

"While researching issues related to the scope of Allen acting as a temporary judge in post-judgment matters, Frank became aware of California Rules of Court, rule 244(b) requiring a temporary judge to certify that he is aware of and will comply with canon 6 of the Code of Judicial Ethics and the rules of court. Frank requested Allen to make disclosure to the parties as required by law. Allen did not respond.

"Frank's research of public records determined that Shirley's attorney, S. Michael Love (Love), and his wife had, in February 2002, transferred Warner Springs Ranch interest number 1546B to attorney Harold S. Bottomley III (Bottomley) and his wife and also transferred Warner Springs Ranch interest number 850A to Bottomley alone. The interests transferred were 'half interests' entitling the owner to use the Warner Springs Ranch facilities six months of the year. The transfers were designated 'gifts.' One month later, Bottomley transferred interest number 850A to Allen reciting that the transfer was a gift. The following month Allen, traded his 'half interest' for a 'whole interest' entitling him to use the Warner Springs Ranch facilities all year.

"Frank filed a statement of disqualification challenging Allen as a temporary judge for cause. Frank argued that Allen was disqualified under Code of Civil Procedure section 170.1, subdivision (a) based on the 'gift' of the Warner Springs Ranch interest by Love and his wife and other purported relationships between Allen and Shirley's attorneys. Frank provided copies of grant and quitclaim deeds documenting the property transfers he had discovered. Allen filed a statement withdrawing as temporary judge stating that he was not conceding that any of Frank's allegations were grounds for disqualification. [¶] . . . [¶]

"Frank filed this petition requesting this court to issue a writ of error coram vobis directing the superior court judge who replaced Allen to hear and rule on a motion to set aside Allen's rulings and orders made at times when he was disqualified." (2003 WL 22301033, fns. omitted.)

In Rogozienski I we issued an order to show cause why the relief Frank requested should not be granted. Thereafter we granted the writ. We found: "A person aware that: 1) Love was an attorney appearing in ongoing litigation before Allen, a temporary judge, 2) the Code of Judicial Ethics prohibited Allen from accepting a gift or favor from anyone whose interests were reasonably likely to come before the court, 3) Love conveyed one-half interest to Bottomley and his wife with the other to Bottomley alone, and 4) Bottomley shortly thereafter conveyed the half interest held in his name alone to Allen, could reasonably conclude Love gave the property indirectly to Allen through Bottomley." (2003 WL 22301033, fns. omitted.)

In light of that finding, we directed the trial court, after considering all the evidence presented by the parties, "determine if or when disqualification arose and what rulings, if any, should be set aside, under [Code Civ. Proc.] section 170.3, subdivision (b)(4)." (2003 WL 22301033, fn. omitted.) Importantly, for our purposes, at the time Rogozienski I was pending, an appeal from Allen's judgment on the merits was also pending. Both Frank and Shirley had appealed from Allen's judgment before Frank discovered the gift of the timeshare interest; we stayed the appeal when we granted the order to show cause in Rogozienski I. In our disposition in Rogozienski I, we continued the stay pending our further order. (2003 WL 22301033.)

B. Rogozienski II

On remand the trial court determined only those rulings Allen made after he accepted the gift of the timeshare needed to be set aside and rulings made before Allen accepted the gift, in particular his ruling as to the validity and interpretation of the parties' prenuptial agreement, were not voidable. Frank appealed from the trial court's order on remand and argued Allen's rulings on the prenuptial agreement should also be set aside. In Rogozienski II, we agreed with Frank and reversed the trial court's order. We found under the single judge rule set forth in European Beverage, Inc. v. Superior Court (1996) 43 Cal.App.4th 1211, 1213-1214, and Rose v. Boydston (1981) 122 Cal.App.3d 92, 97, Frank was entitled to have one judge hear the evidence and make his or her own decision on all issues.

On the same day we filed our opinion in Rogozienski II, we filed an order dismissing Frank and Shirley's appeal from the merits of Allen's initial judgment. We found in light of our ruling in Rogozienski II, the issues in dispute on the appeal were moot.

C. Rogozienski v. Allen

In addition to his ongoing dissolution litigation, after Frank discovered Allen's receipt of Love's interest in the timeshare, Frank brought this civil action against Allen and Love. He alleged, among other claims, negligence, civil rights violations, causes of action for intentional interference with contractual relations, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage. Allen and Love both demurred to the complaint and the trial court sustained their demurrers without leave to amend. Frank appealed and we affirmed as to Allen. We agreed with Allen he was protected from liability by the doctrine of judicial immunity. However, we reversed as to Love and permitted some of Frank's claims against Love to proceed to trial.

As we indicated at the outset, on remand the jury returned a verdict in Frank's favor on his willful misconduct and negligence causes of action. The jury found the timeshare transfer was a gift from Love to Allen and it caused Frank $780,482 in economic damages and $1 in non-economic damages. As we also indicated, the trial court thereafter granted Love's motion for a JNOV on the grounds the gift did not cause any damage to Frank.

The jury found in Love's favor on Frank's intentional interference with contractual relations and civil rights causes of action.

A JNOV was entered and Frank filed a timely notice of appeal.

DISCUSSION
I

"In passing upon the propriety of a judgment notwithstanding the verdict, appellate courts view the evidence in the light most favorable to the party who obtained the verdict and against the party to whom the judgment notwithstanding the verdict was awarded. [Citations.] In other words, we apply the substantial evidence test to the jury verdict, ignoring the judgment." (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 546, overruled on other grounds Soule v. General Motors Corp. (1994) 8 Cal.4th 458, 580.)

As Love points out, in applying the substantial evidence test while it is commonly stated that our "power" begins and ends with a determination that there is substantial evidence in support of the verdict, this does not mean we must blindly seize any evidence in support of the verdict. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633; see also Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 51.) " '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination is whether a reasonable trier of fact could have [reached the verdict] based on the whole record. [Citation.] While substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]." (Kuhn v. Department of General Services, supra, 22 Cal.App.4th at p. 1633.)

II

There is no dispute Frank was required to show Love's gift caused him some injury. (Sprigg v. Garcin (1980) 105 Cal.App.3d 869, 873; see also Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 749.) In meeting this burden, Frank argues "[t]he costs incurred by Frank in the trial before temporary judge Allen and before the matter was assigned to Superior Court Judge Lorna Alksne are damages incurred by Frank."

We begin our analysis by noting there is undisputed evidence in the record Frank believed Allen's disposition of the dissolution case was incorrect and adverse to him. In particular, the record shows Allen's determination that certain founders stock Frank received in Qualcomm, Inc., was community property reduced the value of Frank's separate property by tens of millions of dollars. The record is also clear that before discovering the gift, Frank took a number of other steps to have Allen's judgment vacated.

Thus, as Love points out, even before Allen's judgment was entered, Frank made an unsuccessful attempt to have the stipulation permitting Allen to act as temporary judge vacated. There is also undisputed evidence that even before discovering the gifts, Frank's attorney conducted research with respect to disqualifying Allen. In addition, after Allen's judgment was entered, and before discovering the gift, Frank filed a notice of appeal from the Allen judgment.

However, even accepting these undisputed facts—and in particular Frank's various other attempts to have Allen's rulings vacated—the record does not require a finding the costs Frank incurred in obtaining rulings from Allen would be lost to Frank even if no gift were ever made. Although not expressly relied upon by Love, in arguing reversal of Allen's rulings was a result Frank plainly desired, Love appears to be relying, at least in part, on the well-established rule " ' " the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent." ' " (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 899, quoting Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 and Rest.2d Torts, § 432.)

This rule of "inevitable damage" or "concurrent independent causes" has no application here because the record did not require a finding that Frank's other efforts to overturn the Allen judgment would have been successful. For instance, it appears from the record our stay of the appeal occurred before any briefs in the appeal were ever filed. Thus the record did not permit, let alone require, the jury find Allen's judgment would have been reversed in whole or in part on the merits. Similarly, a reasonable jury could have concluded that even though Frank may have paid his attorney to investigate other grounds for disqualifying Allen because Frank never followed through on that investigation, he ultimately concluded it was not a practical means of challenging Allen's rulings. Indeed, there were no assurances a different judge would have made rulings that, overall, were more favorable to him.

Emphasizing the fact that before discovering the gift Frank took steps to have Allen's judgment set aside, Love more explicitly argues Frank somehow waived or forfeited his right to any damages caused by the gift. (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1194.) Nothing in the record compels a waiver or forfeiture finding.

Love's argument with respect to waiver or forfeiture is predicated on his assertion the only inference that can be drawn from Frank's other efforts to disqualify Allen and overturn the entire judgment is that Frank no longer had any desire or interest in preserving any of Allen's disposition, even those parts that favored him. However, the record is not by any means that conclusive. As we have discussed, Frank's appeal on the merits was stayed while we considered the impact of the gift. Thus, although the record shows Frank preserved his right to appeal, it does not show that he was inalterably committed to overturn the entire judgment as opposed to specific findings he thought were erroneous. By the same token, as we have already noted Frank's abandoned investigation of Allen does not compel a conclusion that Frank saw no value in the proceedings before Allen.

Indeed, because these other steps were taken before Frank discovered the gift and there was no assurance they would be successful, it can hardly be said they represent an unequivocal expression of Frank's intent to forego any damage caused by the still undiscovered gift. "Waiver is the voluntary relinquishment of a known right. [Citation.] To constitute a waiver, it is essential that there be . . . an actual intention to relinquish [the right] or conduct so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it has been relinquished." (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41.) In this regard, the record here is readily distinguishable from Oakland Raiders v. Oakland-Alameda County Coliseum, Inc., supra, 144 Cal.App.4th at page 1194, where, as Love himself points out, the Raiders were found to have waived a fraud claim because they entered into a contract after they knew about Love's misrepresentations.

As we stated in footnote 1, infra, Love did not attempt to show that the result Frank achieved in the second round of litigation was more beneficial to him and therefore offset any losses caused by vacation of Allen's rulings.
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In the end, we know the judgment was vacated in its entirety because of the gift. That fact is sufficient to support Frank's claim the litigation expenses he incurred before Allen were lost because of Love's gift.

DISPOSITION

The JNOV is reversed and the cause is remanded with instructions to the trial court to enter a judgment on the jury's special verdict. Appellant to recover his costs of appeal.

BENKE, Acting P. J. WE CONCUR:

HALLER, J.

McDONALD, J.