Filed 4/21/20 Meagher v. Bradford CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

—-

TRISHA MEAGHER,

Plaintiff and Appellant,

v.

ROBINSON BRADFORD LLP,

Defendant and Respondent.

C087478

(Super. Ct. No.

STK-CV-UBC-2015-0009469)

Plaintiff Trisha Meagher (Meagher) and her company Windmill Cove Restaurant, LLC (Windmill Cove) entered into a written contingency fee agreement with defendant Robinson Bradford LLP (Robinson Bradford). The parties agreed that Robinson Bradford would provide legal services in connection with two matters, and that Robinson Bradford would be paid 35 percent of any net recovery or, if an award of attorney fees were recovered, the full award of attorney fees. The firm prevailed in the first action and received a fee award in the amount of $98,500. The second action resulted in a settlement in which Meagher and Windmill Cove received $1,050,000. But when Robinson Bradford sought to collect its 35 percent contingency fee share of the settlement, Meagher refused to pay and, dissatisfied with the outcome of nonbinding fee arbitration, eventually sued the law firm claiming breach of contract, breach of fiduciary duty, and related claims. The firm cross-complained for its fees and for fraud. After a jury trial, judgment was entered against Meagher and Windmill Cove on all causes of action. Meagher, proceeding in propria persona, appeals from the judgment.

As a threshold matter, we note that our review of this matter has been hindered by Meagher’s noncompliance with the rules of appellate procedure. Meagher has forfeited many of the issues raised in her briefs by failing to provide an adequate record for review, failing to raise issues in the trial court, and failing to furnish us with meaningful legal analysis of the alleged errors in the judgment supported by citations to authority and facts in the record. On the issues that were not forfeited, we find no error. However, in our review of the record, we discovered a patent computational error in the amount of the judgment. Accordingly, we shall remand this matter to the trial court with directions to modify the judgment to correct the clerical error and recalculate the prejudgment interest. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Meagher was a managing member of the Windmill Cove Restaurant in Stockton, California. Beginning in 2011, Meagher and Windmill Cove became involved in litigation with Windmill Cove Resort and Marina, LLC, the landlord, and associated individuals (collectively, the Resort). When the first law firm retained by Meagher and Windmill Cove withdrew from representation because Meagher no longer could afford to pay, Robinson Bradford agreed to accept representation on a contingency basis.

In April of 2013, Meagher signed a written contingency fee agreement with Robinson Bradford. The fee agreement provided that Robinson Bradford would represent Meagher and Windmill Cove in two actions: an unlawful detainer action filed by the Resort against Windmill Cove (the unlawful detainer action), and (2) a civil action filed by Meagher and her company against the Resort, David Theis, and Ryan Theis (the civil action). The fee agreement provided that Robinson Bradford would not represent them in other legal matters without a separate written agreement.

Under the fee agreement, Robinson Bradford would be compensated for legal services only if a recovery was obtained. The amount of the fee would be, “at Attorney’s option, 35% of any net recovery or, in the event an award of attorney’s fees is recovered, the full award of attorney’s fees.” Net recovery is defined to mean the “total of all amounts received by settlement, arbitration award or judgment, excluding any award of attorneys fees[,] minus costs reimbursed to Attorney pursuant to this agreement.”

In 2013, after a jury trial, Robinson Bradford prevailed on behalf of Windmill Cove in the unlawful detainer action. The trial court subsequently awarded Robinson Bradford approximately $98,500 in fees and costs.

The civil action proceeded to a bifurcated jury trial that began in May 2014 and ended in July 2014. After the lengthy trial, the jury returned a verdict against the Resort defendants. The same day, the parties agreed to settle the case. Under the terms of the settlement, the Resort defendants agreed, among other things, to pay the plaintiffs (Meagher and Windmill Cove) the sum of $1,050,000, allocated, at Meagher’s direction, $200,000 to Windmill Cove and $850,000 to Meagher individually.

Soon after the settlement was finalized, Meagher began disputing the amount of fees owed to Robinson Bradford and refused to consent to payment from the settlement funds. The dispute proceeded to nonbinding California State Bar fee arbitration. In September 2015, a panel of three arbitrators awarded Robinson Bradford $365,266.97 as the remaining unpaid amount due for its fees and costs associated with the civil action. Meagher rejected the award and filed a complaint against Robinson Bradford and attorney Matthew Bradford.

In her third amended complaint, Meagher alleged causes of action against Robinson Bradford for breach of contract, breach of fiduciary duty, intentional interference with prospective economic relationships, declaratory relief, and breach of the implied covenant of good faith and fair dealing. While admitting that she entered into a written fee agreement with the law firm, Meagher alleged that Matthew Bradford agreed to “orally amend” the agreement to address a potential conflict of interest that prevented the firm from concurrently representing her and her company. She also alleged that the firm (1) failed to adequately disclose the conflict of interest, (2) failed to provide monthly billing statements, (3) failed to provide and deliver paperwork, (4) failed to properly communicate with her, (5) made unauthorized payments from her client trust account, and (6) incorrectly calculated the amount of fees owed for services under the fee agreement.

Defendant Robinson Bradford filed a cross-complaint against Meagher and Windmill Cove alleging causes of action for breach of contract, quantum meruit, fraud, unfair business practices, and declaratory relief. Windmill Cove did not answer the cross-complaint and a default judgment was entered against it.

After a nine-day jury trial, the jury found against Meagher and in favor of Robinson Bradford on all causes of action. The jury found that Robinson Bradford and Meagher entered into a fee agreement and that Meagher breached that agreement by failing to pay the firm for its services in the civil action. The jury also found that Meagher engaged in fraud by falsely representing that she would pay the firm in accordance with the fee agreement to induce it to provide legal services. The jury determined that Robinson Bradford is entitled to receive the total amount of $388,638.36 under the fee agreement, less $135,954.32 it already received, plus prejudgment interest of $96,676.71, punitive damages of $75,000, and costs of suit in an amount to be determined. Meagher timely appealed the judgment.

DISCUSSION

I

We begin with the fundamental rule of appellate procedure that a judgment challenged on appeal is presumed correct and all intendments and presumptions are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; see also State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) We will not reverse a judgment unless the appellant affirmatively demonstrates both error and resulting prejudice. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802.)

To prevail on appeal, an appellant must do more than assert error and leave it to the appellate court to flesh out the legal and factual basis for the purported error. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 204.) “ ‘It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness.’ [Citation.]” (Flores, supra, 224 Cal.App.4th at p. 204.) The appellant must demonstrate error by presenting meaningful argument and legal authority, along with specific citations to the record, to support the particular claim of error. (In re S.C. (2006) 138 Cal.App.4th 396, 408; see also Cal. Rules of Court, rule 8.204(a)(1)(B), (a)(1)(C) & (a)(2)(C).) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

In reaching a decision on appeal, we are limited to the facts in the record. (Mitchell v. City of Indio (1987) 196 Cal.App.3d 881, 890.) We cannot presume error from an incomplete record and we are not permitted to speculate as to the contents of missing portions of the record or the issues that the appellant may have raised below. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72; Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.) The appellant has the burden of providing an adequate record. (Calhoun, supra, at p. 72.) Without one, we cannot review the sufficiency of the evidence nor determine whether the appellant adequately preserved arguments by presenting them below. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; see also Bach v. County of Butte (1989) 215 Cal.App.3d 294, 306.)

These rules apply with equal force to Meagher, even though she is representing herself on appeal. The law affords in propria persona litigants “ ‘the same, but no greater consideration than other litigants and attorneys.’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

Meagher has failed to obey the rules of appellate procedure, materially impeding our ability to identify, much less review, many of her apparent claims of error. First, she has not provided us with an adequate record that includes all of the exhibits and other documents submitted to and considered by the trial court and the jury. Although required by the rules to include all items necessary for proper consideration of the issues, the appellant’s appendix appears primarily to consist of selected pleadings and exhibits favorable to Meagher’s position, while omitting many of defendant’s trial exhibits.

Second, Meagher has not furnished us with an adequate record of the testimony at trial. Because the proceedings below were not recorded by a court reporter, Meagher has provided a settled statement in lieu of a reporter’s transcript, but it comprises a mere four pages, summarizing testimony of Meagher and Matthew Bradford. There is no summary or description of the testimony of other witnesses at trial such as Lucille Indelicato, Anthony Vignola, or Gregory Goehring.

Finally, Meagher’s opening and reply briefs fail to provide an adequate basis for review of the judgment against her. The arguments in her brief fail in most instances to correspond to the headings under which they appear. And to the extent her briefs contain headings, they generally fail to summarize the point to be argued. (Cal. Rules of Court, rule 8.204(a)(1)(B); Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17 [where an appellate brief fails to include proper headings, the contentions need not be considered]; Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562 [same].)

Many of Meagher’s contentions—both legal and factual—also are not adequately supported with citations to the record or authority. And several do not raise any cognizable claims of error on appeal.

Although she purports to challenge the sufficiency of the evidence to support the jury’s verdict, Meagher has failed in her brief to provide a fair summary of the material evidence bearing on the issues, citing only evidence favorable to her position and ignoring evidence to the contrary. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887 [characterizing such an approach as “manifestly deficient”]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman) [if appellant contends some particular finding is not supported by evidence, appellant’s brief must set forth all material evidence on the point or error is forfeited]; Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 [same].) Throughout her brief, Meagher also relies on documents that were not presented to the jury.

In light of Meagher’s noncompliance with the rules, we will adhere strictly to the rules of appellate practice and procedure. Because Meagher has failed to provide an adequate record of the trial proceedings or a fair summary of the evidence supporting the jury’s findings, she has failed to overcome the presumption that the record contains evidence to sustain every finding of fact and we will not consider her claims that the verdict is unsupported by the evidence. (See Foreman, supra, 3 Cal.3d at p. 881.) Nor will we consider arguments that are not clearly identified under a heading or that are unsupported by reasoned argument and citations to authority and the record. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003; In re Mark B. (2007) 149 Cal.App.4th 61, 67, fn. 2.)

We will, however, address two of Meagher’s principal arguments on the merits. Those arguments are that (1) the parties’ fee agreement is voidable because it does not contain a statement of “related matters” as required by Business and Professions Code section 6147; and (2) the trial court used an erroneous and prejudicial jury verdict form.

II

Meagher argues that the fee agreement between her and Robinson Bradford is voidable under section 6147 because it does not contain a statement addressing related legal matters that might arise out of the attorney-client relationship. Robinson Bradford disagrees, citing certain provisions in the fee agreement.

Section 6147, subdivision (a)(3) provides that a contingency fee agreement shall include a “statement as to what extent, if any, the client could be required to pay any compensation to the attorney for related matters that arise out of their relationship not covered by their contingency fee contract.” (§ 6147, subd. (a)(3).) Failure to comply with this requirement renders the agreement voidable at the option of the plaintiff, and the attorney is thereupon entitled to collect only a reasonable fee. (§ 6147, subd. (b).) Whether a fee agreement complies with section 6147 is an issue of law, which we review de novo.

We find that the fee agreement contains the required related matters statement. In paragraph 2, Robinson Bradford expressly agreed to represent Meagher and her company in the unlawful detainer and civil action. The agreement further provides in paragraph 10 that Robinson Bradford’s representation does not include “any other legal matters” and paragraph 2 states that representation in any other matter “will require a separate written agreement.” We find this language meets the requirements of section 6147, subdivision (a)(3), and therefore conclude that the agreement was not voidable under section 6147, subdivision (b).

III

Meagher argues that the jury verdict form was erroneous and prejudicial because it stated (1) “The parties agree that Robinson Bradford LLP is not seeking attorney’s fees or costs for the 2013 unlawful detainer trial,” and (2) “The parties also agree that Robinson Bradford, LLP has received” $135,954.32 for its work in the civil action. Meagher argues that these statements were untrue and that the jury should have been allowed to determine “what has been paid and how it should be applied to the fee agreement based on their own calculations and their own determination of the fee agreement.”

We evaluate alleged errors in a verdict form applying the same principles we use to review an erroneous instruction, reviewing for prejudicial error. The test of prejudicial error has been stated in terms of the likelihood that the improper instruction misled the jury. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 151-152.)

Meagher has failed to meet her burden to establish prejudicial error. Not only has she failed to indicate whether or how the trial court ruled on her objections to the verdict form, she has not shown, with appropriate citations to the record, that the statements in the verdict form are erroneous, or identified how the alleged errors were prejudicial. She claims that the verdict form excludes additional payments received by Robinson Bradford, but the only evidence cited relates to the unlawful detainer action or refers to third party costs paid directly out of the client trust account (or simply does not support her argument). Meagher has failed to show that there was any legitimate dispute about the amount that Robinson Bradford was paid for its work in the civil action or that Robinson Bradford was in this action seeking fees or costs for the unlawful detainer action. Thus, she has failed to show any likelihood that the jury was misled by the statements in the jury verdict form.

IV

In our review of the record, we discovered a patent computational error in the amount of the judgment. Specifically, the jury determined that Robinson Bradford is entitled to damages in the amount of $388,638.36, less $135,954.32 it already received, for a net award of $252,684.04 (plus prejudgment interest and punitive damages). However, the judgment erroneously calculated this sum as $252,268.04.

“It is well settled that clerical errors in a judgment, where they are shown by the record, may be corrected at any time. [Citation.]” (Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 506.) It is clear from the record here that the sum described in the judgment is the result of an inadvertent computational error and not an exercise of judicial discretion. Accordingly, we shall remand this matter to the trial court with directions to modify the judgment to correct the clerical error and recalculate the attendant amount of prejudgment interest.

DISPOSITION

The case is remanded to the trial court with directions to modify the judgment in a manner consistent with this opinion. In all other respects, the judgment is affirmed. Defendant Robinson Bradford shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

KRAUSE , J.

We concur:

MURRAY , Acting P. J.

DUARTE , J.