Filed 5/31/19 Denton v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RICHARD A. DENTON,

Petitioner,

v.

THE SUPERIOR COURT OF

SAN DIEGO COUNTY,

Respondent;

D074945

(San Diego County

Super. Ct. No. 37-2016-00033130-CU- PN-NC)

CLARICE J. LETIZIA,

Real Party in Interest.

Original proceedings in mandate challenging order of the Superior Court. Earl H. Maas III, Judge. Petition granted.

STATEMENT OF CASE

Petitioner Richard A. Denton challenges respondent Superior Court’s denial of a motion for new trial, which affirmed the trial court’s granting of judgment on the pleadings and denial of leave to file an amended complaint. Both the complaint and the proposed amended complaint arise out of claims for alleged legal malpractice that Denton filed against his former attorney, Real Party in Interest Clarice J. Letizia. For the reasons stated below, we grant the petition for writ of mandate.

BACKGROUND

In September 2013, Denton filed a complaint against his employer, the City and County of San Francisco, for various workplace claims (the “San Francisco case”). Denton retained Letizia on a contingency fee basis. The defendant employer filed a motion for summary judgment, but Letizia did not file a response for 11 months while the parties discussed settlement. The parties reached a tentative settlement agreement in September 2015. Denton discharged Letizia after a dispute arose about the settlement negotiations and the settlement agreement was scuttled. The summary judgment motion was recalendared for a few days later but no opposition was filed. Denton contends that Letizia’s acts and omissions caused the failure to file an opposition. The trial court granted summary judgment against Denton in the San Francisco case on September 26, 2015. Denton appealed that judgment.

Denton filed this lawsuit against Letizia on September 22, 2016, with claims for legal malpractice and breach of fiduciary duty, alleging Letizia’s postdischarge deficient acts led to the adverse entry of judgment against Denton in his suit against his employer. Letizia filed an answer and a cross-complaint for breach of contract, alleging she was entitled to recover her costs and expenses under the terms of the retainer.

After this case was filed, Denton retained appellate counsel in the San Francisco case. Counsel secured a reversal of the judgment against Denton. The First District Court of Appeal concluded that the trial court should have granted Denton a continuance to oppose the motion for summary judgment. It vacated the judgment against Denton and returned the case to the San Francisco Superior Court to be litigated on the merits. (Denton v. City and County of San Francisco (2017) 16 Cal.App.5th 779, 795 (Denton I).)

The reversal on appeal led Letizia to move for judgment on the pleadings in this malpractice lawsuit. She contended that because Denton had been returned to the same position he was in before her alleged malpractice in the employment action, he could not prove that she had caused any damage to him.

Denton sought leave to file an amended complaint in this case after the

San Francisco case was remanded for further proceedings. The proposed amended complaint admits that his “full damages are not yet ascertained,” but states that because of Letizia’s actions he incurred costs to pursue an appeal in the San Francisco case. He also sought to allege new causes of action for tortious interference with contract and breach of contract based on the same general theory of Letizia’s alleged malpractice. He could not file his motion, however, because the calendar clerk told Denton that there were no dates available for a hearing on a motion before the trial management conference. Denton filed an ex parte application asking the trial court to continue the trial for 90 days so that his motion for leave to amend and other motions could be heard, or else that his motions be placed on calendar on the date set for Letizia’s motion for judgment on the pleadings.

Letizia’s motion for judgment on the pleadings and Denton’s motion for leave to file an amended complaint were heard together on June 29, 2018. On July 12, 2018, the trial court denied Denton’s motion for leave to file an amended complaint, stating that the motion was filed after the motion cut-off date and was therefore untimely. The court granted Letizia’s motion for judgment on the pleadings, explaining that “[t]he underlying action is still pending and Plaintiff cannot establish that but for Defendant’s negligence, Plaintiff would have obtained a better result. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)”

Denton filed a motion for new trial, contending the trial court applied the wrong legal standard in granting Letizia’s motion for judgment on the pleadings and abused its discretion in denying his motion for leave to file an amended complaint. The trial court denied the motion on September 21, 2018, finding no error with its prior ruling. The trial court stayed further proceedings so Denton could pursue a writ.

Denton filed this petition on November 20, 2018, challenging the order denying new trial. Denton contends the court erred in granting the motion for judgment on the pleadings and in denying him leave to amend the complaint. He argues that Letizia’s acts caused him injury by requiring him to incur costs to pursue the appeal in the

San Francisco case. Thus, even if he was returned to the same position as before the alleged malpractice, he incurred costs to reach that position.

DISCUSSION

Propriety of Writ Proceedings

The trial court dismissed Denton’s complaint with prejudice and entered judgment against him. That judgment and the order after judgment for new trial would ordinarily be appealable. But Letizia filed a cross-complaint against Denton that is still pending. Under the “one final judgment rule,” a judgment that resolves a complaint but does not dispose of a cross-complaint pending between the same parties is not final and thus not appealable. (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1002.) Denton could obtain review of the judgment and order on direct appeal from an eventual judgment resolving the cross-complaint (ibid.), but in the meantime the trial court intended to proceed with a trial of Letizia’s cross-complaint against Denton.

A petitioner must show that his remedy in the ordinary course of law is inadequate or that the petitioner would suffer irreparable injury were the writ not granted. (Duke v. Superior Court (2017) 18 Cal.App.5th 490, 497–498 (Duke).) The dismissal of a complaint when a defendant’s cross-complaint will proceed may cause the requisite urgency for a writ due to irreparable injury. “The requisite urgency is commonly found where, as here, the trial court has effectively disposed of part of an action, leaving the rest for trial, and there is a substantial likelihood that the partial disposition may be held on appeal to constitute error, necessitating a second trial, whereas timely appellate intervention by extraordinary writ would permit the entire case to be disposed of in a single trial.” (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 989; Duke at pp. 497–498.) We found those conditions here and issued an order to show cause. Letizia has elected to rely on her informal response as her return.

Standard of Review of Denial of New Trial

We apply our independent judgment to review a motion for new trial based on a question of law. (Estill v. County of Shasta (2018) 25 Cal.App.5th 702, 708 (Estill).) We review for an abuse of discretion when the new trial motion challenged the trial court’s discretionary choices. (Denton I, supra, 16 Cal.App.5th at p. 794.) The scope of discretion always resides in the legal principles governing the subject matter at issue. (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) “An abuse of discretion occurs if, in light of the applicable law and the relevant circumstances, the court’s decision exceeds the bounds of reason, resulting in a miscarriage of justice.” (Olive v. General Nutrition Centers, Inc. (2018) 30 Cal.App.5th 804, 827–828.)

Judgment on the Pleadings

Denton’s motion for new trial claimed legal error in the court’s granting of judgment on the pleadings. (See Hoffman–Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 14–15 (Hoffman–Haag) [new trial motion can be brought on ground of legal error].) This is an issue of law that we independently review. (Estill, supra, 25 Cal.App.5th at p. 708.)

The trial court ruled that Denton could not show actual damage that was caused by his attorney Letizia because any damage was speculative. The underlying San Francisco case was still pending. Denton could not show that he would have obtained a better result but for Letizia’s negligence. Further, Letizia argues, there was no “lingering impairment” from her prior actions or inactions after replacement counsel took over the case.

However, Denton has already suffered damages in the San Francisco case. He incurred costs to secure a reversal on appeal after actions or inactions by Letizia allegedly resulted in the trial court entering judgment against Denton. According to the allegations in his complaint—which are accepted as true and liberally construed on a motion for judgment on the pleadings (see National Shooting Sports Foundation, Inc. v. State of California (2018) 5 Cal.5th 428, 432)—Letizia’s failure to file an opposition to the pending motion for summary judgment and failure to timely advise Denton of the need to file an opposition resulted in the San Francisco trial court granting judgment against him. (See Denton I, supra, 16 Cal.App.5th at pp. 783, 787–788.) As a result, Denton had to pay litigation costs, pay an attorney to assist him with the motion for new trial, hire new counsel and pay counsel to pursue the appeal. Payment of fees to a second attorney to untangle the original attorney’s negligence can be recoverable damages. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 750-751 (Jordache).) “[A]ttorney fees incurred as a direct result of another’s tort are recoverable damages.” (Ibid.; Truong v. Glasser (2009) 181 Cal.App.4th 102, 114–115.) Denton has already suffered actual damages.

Denton may be able to prove other damages, as well, by the traditional test of whether he would have obtained a more favorable result but for Letizia’s negligence. (See Viner v. Sweet, supra, 30 Cal.4th at p. 1241.) Damages may be assessed even without a resolution of the underlying action. (Jordache, supra, 18 Cal.4th at p. 753, 755.) The final resolution of the underlying case might have an impact on the amount of damages due to attorney negligence, but is not a necessary precondition to a suit for attorney negligence. (Id. at pp. 753–754.) Just because the San Francisco case is ongoing does not mean that Denton cannot prove that he would have received a more favorable outcome but for Letizia’s acts and omissions.

Further, the amount of damages, if any, is not a basis for judgment on the pleadings, a procedure that looks only at the allegations of the pleadings and not at any proof that Denton may be able to provide for his claim. We take no position on the ultimate outcome of Denton’s malpractice claim but conclude that the trial court applied the wrong legal standard in granting Letizia’s motion for judgment on the pleadings. Denton has already suffered damages that may be a result of Letizia’s negligence regardless of the outcome of the retrial of the San Francisco case, and he may be able to show additional damages upon a full trial of his claims.

Leave to Amend Complaint

Denton contends that the trial court abused its discretion when it denied his motion for leave to amend his complaint. We agree.

Background

A case management conference was held in May 2017, at which time the court set trial for March 16, 2018, and ordered all discovery and motions other than dispositive motions to be completed by February 9, 2018. The parties stipulated in February 2018 to continue the trial date and discovery until July 2018. The parties assumed that this stipulation continued the motion cut-off dates along with the trial date. (See Munoz v. City of Tracy (2015) 238 Cal.App.4th 354, 360 [parties’ stipulation continuing trial extended the five-year-dismissal statute].) Letizia states several times in her response that the motion cut-off was June 13, 2018, 30 days before the stipulated July 13 trial date.

Denton determined there were new causes of action to be filed in this malpractice action. He tried to file a motion for leave to file an amended complaint, but was precluded by the local rule that requires an available hearing date before filing a motion. (See Super. Ct. S.D. County, Local Rules, rule 2.1.19(A).) Presumably no hearing date was available because of the heavy burdens on the superior court. We are sympathetic to those burdens, but they are unrelated to this case and out of the control of the litigants.

Letizia opposed the motion for leave to amend on a substantive legal ground—that Denton could not prevail because a new trial had been granted in his San Francisco case against his employer. She did not argue that she would be prejudiced by the amendment of the complaint. When Denton’s motion for leave to amend his complaint was heard on June 29, the court ordered the motion off calendar because it was “untimely filed and served” after the purported February motion cut-off date, even though the parties thought that the cut-off date had been extended.

In his motion for new trial, Denton argued that the trial court abused its discretion in failing to hear his motion for leave to amend his complaint. “[A]ny order of the court or abuse of discretion by which either party was prevented from having a fair trial” is a ground for a new trial. (Code Civ. Pro., § 657, subd. (1).) The court relied on its prior ruling in denying the motion for new trial for leave to amend.

Analysis

Code of Civil Procedure section 473, subdivision (a)(1) permits a court, “in furtherance of justice,” to “allow a party to amend any pleading . . . in any . . . respect.” A trial court has wide discretion to allow the amendment of pleadings, and generally courts should liberally allow amendments at any stage of the proceeding when there is no prejudice to the adverse party. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175 (Melican).) Prejudice in this context is a showing of the party’s inability to defend against the newly added causes of action. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 545.)

Leave to amend should be granted when relevant new events occur after the filing of the original complaint. “The proposed amendments finished telling the story begun in the original complaint. The added assertions described the continuation of the events asserted in the initial pleading.” (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 966 (Honig).) Prejudice is minimized when both parties are aware of the subsequent event. (Ibid.)

A court’s determination of leave to amend is reviewed for an abuse of discretion (Melican, supra, 151 Cal.App.4th at p. 175) and as noted above, we review a motion for new trial for an abuse of discretion for such an issue. (Denton I, supra, 16 Cal.App.5th at p. 794.) When reviewing the trial court’s discretion to grant or deny leave to amend, we look at the nature of the pleading, the conduct of the moving party, prejudice to the responding party, and reasons for any delay in presenting the motion. (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939.) We are less likely to find an abuse of discretion when the proposed amendment is offered after a long, unexplained delay or when the moving party fails to act with diligence. (Melican, at p. 175.)

Denial of leave to amend in this case was intertwined with the policy of controlling litigation to reach a fair result without undue delay. (See Trial Court Delay Reduction Act, Gov. Code, § 68600 et seq.) ” ‘Cases filed in California’s trial courts should be resolved as expeditiously as possible, consistent with the obligation of the courts to give full and careful consideration to the issues presented, and consistent with the right of parties to adequately prepare and present their cases to the courts.’ ” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 479–480, quoting Gov. Code, former

§ 68601, subd. (c).) Case management orders move cases toward a timely and efficient disposition, but must “be applied in a fair, practical, and flexible manner so as to achieve the ends of justice.” (Cal. Rules of Court, rule 3.700.) Courts have the authority to control civil litigation, but cannot issue local or courtroom rules that conflict with statute or that are inconsistent with law. (People v. Smith (2002) 95 Cal.App.4th 283, 301 (Smith) [defendant’s motion to suppress evidence cannot be denied due to defendant’s failure to comply with local rule]; Wagner v. Superior Court (1993) 12 Cal.App.4th 1314, 1319–1320 (Wagner) [trial court cannot set discovery cutoff dates shorter than cutoff dates authorized by statute].) Denton should not have been precluded from a hearing on his motion for leave to amend due to local court procedures and burdens unrelated to this litigation. (Smith, at p. 301; Wagner, at pp. 1319–1320.)

Further, Denton did not unduly delay in filing his motion for leave to amend the complaint. The First District’s reversal of the San Francisco case’s judgment against him was a major event that occurred in the midst of this litigation. (Honig, supra, 6 Cal.App.4th at p. 966.) Letizia was aware of this event and the impact it had on this case. And Letizia claimed no prejudice. (Ibid.) The trial court should have followed the policy of liberal allowance of amendments because there was no prejudice to the adverse party. (Melican, supra, 151 Cal.App.4th at p. 175.)

” ‘When a request to amend has been denied, an appellate court is confronted by two conflicting policies. On the one hand, the trial court’s discretion should not be disturbed unless it has been clearly abused; on the other, there is a strong policy in favor of liberal allowance of amendments. This conflict “is often resolved in favor of the privilege of amending . . . .” ‘ ” (Honig, supra, 6 Cal.App.4th at p. 965.) We conclude that the trial court abused its discretion under the circumstances of this case—the unforeseen critical intervening event, the lack of prejudice to Letizia, and the denial of the filing of the motion due to a local rule and the heavy workload of the trial court, which was outside the control of the court and the parties.

DISPOSITION

Let a writ issue commanding respondent Superior Court to vacate its orders granting Letizia’s motion for judgment on the pleadings and denying Denton’s motions for leave to file an amended complaint and for a new trial, and to enter new orders denying the motion for judgment on the pleadings, granting the motion for leave to file an amended complaint, and denying as moot the motion for a new trial. Costs awarded to petitioner.

BENKE, Acting P.J.

WE CONCUR:

HUFFMAN, J.

DATO, J.