Martel v. Litchfield CA3 ( 2013 )

Filed 12/4/13 Martel v. Litchfield 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
RICHARD S. MARTEL,
Plaintiff and Respondent, C068425
v. (Super. Ct. No. SCV22556)
ROBERT L. LITCHFIELD
Defendant and Appellant.
In a prior lawsuit, Richard Martel sued his former girlfriend. Attorney Robert
Litchfield represented the girlfriend in that action.
Martel subsequently sued Litchfield based on communications and court
documents created during the litigation between Martel and his girlfriend. Litchfield
ultimately filed a first amended cross-complaint against Martel, alleging, among other
things, that Martel intentionally inflicted severe emotional distress on Litchfield by
1
making prank phone calls to Litchfield’s law office, leaving obscene, threatening and
abusive telephone messages and e-mails for Litchfield, and slashing Litchfield’s car tire.
The trial court sustained Martel’s demurrer to Litchfield’s first amended cross-complaint
without leave to amend.
Litchfield appeals from the dismissal of his cross-complaint. He contends (1) the
litigation privilege did not immunize Martel from tort liability for the conduct alleged in
the intentional infliction of emotional distress cause of action of the first amended cross-
complaint; (2) the first amended cross-complaint alleged sufficient facts to state a cause
of action for intentional infliction of emotional distress; (3) the trial court abused its
discretion because its demurrer order contradicted its prior order denying Martel’s motion
to strike the prayer for punitive damages in Litchfield’s original cross-complaint; (4) the
trial court abused its discretion by giving Martel multiple opportunities to amend his
complaint against Litchfield while giving Litchfield only one chance to amend his cross-
complaint; (5) the trial court erroneously denied Litchfield’s motion to disqualify
Judge Larry Gaddis; and (6) we should disregard the respondent’s brief because it does
not comply with rule 8.204 of the California Rules of Court.
We conclude (1) the litigation privilege barred tort liability based on Martel’s
alleged statements even if such statements were criminal acts, but the litigation privilege
did not apply to alleged hang-up telephone calls and the alleged slashing of Litchfield’s
car tire; (2) however, the first amended cross-complaint did not state a cause of action for
intentional infliction of emotional distress because the alleged nonprivileged conduct was
not extreme and outrageous; (3) and (4) Litchfield fails to establish that the trial court
abused its discretion; (5) Litchfield’s challenge to the denial of his motion to disqualify
Judge Gaddis is not properly before us; and (6) we will disregard the respondent’s brief
because it fails to comply with California Rules of Court, rule 8.204.
We will affirm the judgment.
2
BACKGROUND
Martel sued his former girlfriend Danelle Besana. Litchfield represented Besana
in that lawsuit.
Martel subsequently sued Litchfield for civil extortion, harassment, defamation,
invasion of privacy, intentional infliction of emotional distress, and violation of civil
rights (Civ. Code, § 52.1). The lawsuit against Litchfield was based on letters, e-mails,
court documents, and other communications by Litchfield in the course of Martel’s
lawsuit against Besana and Besana’s cross-complaint against Martel.
Litchfield filed a cross-complaint against Martel. Following an order granting in
part Martel’s motion to strike portions of the cross-complaint, Litchfield filed a first
amended verified cross-complaint against Martel for breach of contract, breach of a third
party beneficiary contract, promissory estoppel, interference with contract, interference
with business performance, and intentional infliction of emotional distress.
The first amended cross-complaint alleged, in pertinent part, that Litchfield
defended Besana in the lawsuit that Martel filed against her. Martel represented himself
in that lawsuit. Martel repeatedly attempted to induce Besana to breach her attorney-
client agreement with Litchfield and/or to force Litchfield to abandon his representation
of Besana. Martel (a) attempted to blackmail Besana, using threats to report her to the
Internal Revenue Service, the Town of Truckee Building Department, and the Town of
Truckee for alleged income tax violations; (b) repeatedly made prank telephone calls to
Litchfield’s law office and left obscene, threatening and abusive telephone messages and
e-mails for Litchfield; (c) slashed one of the tires of Litchfield’s car; and (d) responded to
a settlement offer by making a thinly veiled threat of torture. Martel’s actions caused
Litchfield to suffer severe emotional distress. Martel’s actions were malicious,
oppressive and fraudulent, entitling Litchfield to an award of punitive damages.
The trial court sustained, without leave to amend, Martel’s demurrer to all causes
of action in the first amended cross-complaint. There is no dismissal order in the record
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before us. But Litchfield states, without contradiction, that the trial court dismissed
Litchfield’s entire cross-complaint against Martel.
Martel’s lawsuit against Litchfield proceeded to trial. Martel subsequently filed a
notice of appeal of the judgment, and Litchfield filed a notice of cross-appeal of the order
sustaining Martel’s demurrer to the first amended cross-complaint.
Martel dismissed his appeal. Therefore, the only matter before us is Litchfield’s
cross-appeal. We deem Litchfield’s cross-appeal to be from the judgment of dismissal
following the order sustaining Martel’s demurrer to the entire first amended cross-
complaint without leave to amend. (Code Civ. Proc., § 904.1, subd. (a)(1); Melton v.
Boustred (2010) 183 Cal. App. 4th 521, 527, fn. 1.)
STANDARD OF REVIEW
“ ‘Our only task in reviewing a ruling on a demurrer is to determine whether the
complaint states a cause of action.’ [Citation.] ‘ “We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions of fact or
law. [Citation.] . . .” [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context. [Citation.] When a
demurrer is sustained, we determine whether the complaint states facts sufficient to
constitute a cause of action. [Citation.] And when it is sustained without leave to amend,
we decide whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we reverse; if not,
there has been no abuse of discretion and we affirm. [Citations.] The burden of proving
such reasonable possibility is squarely on the plaintiff.’ [Citation.] An appellate court
must affirm if the trial court’s decision to sustain the demurrer was correct on any theory.
[Citation.]” (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal. App. 4th 799, 807-808,
fn. omitted.)
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DISCUSSION
I
Litchfield claims the litigation privilege did not bar his intentional infliction of
emotional distress cause of action because the alleged conduct by Martel was illegal.
The litigation privilege, codified in Civil Code section 47, subdivision (b),
imposes an absolute limitation on tort liability. (Silberg v. Anderson (1990) 50 Cal. 3d
205, 215-216 (Silberg); Flatley v. Mauro (2006) 39 Cal. 4th 299, 322.) Courts have
broadly applied the privilege to further its purposes, which are “to afford litigants and
witnesses free access to the courts without fear of being harassed subsequently by
derivative tort actions, to encourage open channels of communication and zealous
advocacy, to promote complete and truthful testimony, to give finality to judgments, and
to avoid unending litigation.” (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1063
(Rusheen).) The usual formulation for the privilege is that it “applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that
[has] some connection or logical relation to the action.” (Silberg, supra, 50 Cal.3d at
p. 212.) The third and fourth elements of the formulation relate to whether the
communication has some reasonable connection with the judicial or quasi-judicial
proceedings. (Id. at pp. 219-220.) As long as the communication by a litigant has some
reasonable relation to a judicial or quasi-judicial proceeding, it is absolutely immune
from tort liability, except for a claim of malicious prosecution. (Rusheen, supra, 37
Cal.4th at p. 1057; Silberg, supra, 50 Cal.3d at p. 212; Lerette v. Dean Witter
Organization, Inc. (1976) 60 Cal. App. 3d 573, 576 [litigation privilege bars cause of
action for emotional harm].) The privilege applies even when the communication is
made outside the courtroom and no function of the court or its officers is involved.
(Silberg, supra, 50 Cal.3d at p. 212.)
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“ ‘Any doubt about whether the privilege applies is resolved in favor of applying
it.’ [Citation.] Although ‘the litigation privilege has its costs, “ ‘[I]t is desirable to create
an absolute privilege . . . not because we desire to protect the shady practitioner, but
because we do not want the honest one to have to be concerned with [subsequent
derivative] actions . . . .’ ” [Citation.]’ [Citation.]” (Wang v. Heck (2012) 203
Cal. App. 4th 677, 686-687.) “The salutary policy reasons for an absolute [litigation]
privilege supersede individual litigants’ interests in recovering damages for injurious
publications made during the course of judicial proceedings.” (Silberg, supra, 50 Cal.3d
at p. 218.) This is because “the evils inherent in permitting derivative tort actions based
on communications during the trial of a previous action are . . . far more destructive to the
administration of justice than an occasional ‘unfair’ result.” (Id. at p. 213.)
The application of the litigation privilege to the undisputed facts pleaded in a
complaint is a question of law subject to our independent review. (Rothman v. Jackson
(1996) 49 Cal. App. 4th 1134, 1139-1140.)
Litchfield’s intentional infliction of emotional distress cause of action was based
on four categories of alleged conduct which occurred during litigation: (1) threats to
report Besana to government agencies for alleged tax code violations, (2) a threat to
torture Litchfield and Besana in response to a settlement offer, (3) prank and obscene
telephone calls and abusive e-mails, and (4) the slashing of Litchfield’s car tire.
Litchfield alleged that when he represented Besana in Martel’s lawsuit against her,
Martel tried to cause Besana to breach her attorney-client agreement with Litchfield
and/or tried to force Litchfield to abandon his representation of Besana by various means,
including threatening to report Besana to government agencies for alleged tax code
violations. Litchfield also alleged that in response to a settlement offer from Besana,
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Martel made a very distasteful statement which Litchfield understood as a threat of
torture.1
The alleged statements by Martel were privileged because they were
communications made in the course of a judicial proceeding by a litigant in that action
and were logically connected with the action. (Silberg, supra, 50 Cal.3d at p. 212;
Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal. App. 4th 324, 341
[litigation privilege precluded intentional infliction of emotional distress claim based on
debt collection efforts which included harassing telephone calls where the calls were
related to an arbitration award].) In particular, Martel’s alleged response to a settlement
offer was privileged as a statement made during settlement negotiations. (Seltzer v.
Barnes (2010) 182 Cal. App. 4th 953, 969-972; Home Ins. Co. v. Zurich Ins. Co. (2002) 96
Cal. App. 4th 17, 24; Izzi v. Rellas (1980) 104 Cal. App. 3d 254, 265-267 [“The
indisposition of a party or his attorney to conditions for settlement proposed by an
adverse party or his attorney is inherently part of the pursuit of the party objectives in the
course of litigation.”].) Although we do not condone Martel’s alleged conduct, the
litigation privilege barred liability for an emotional distress claim based on Martel’s
alleged statements, even if the statements were tortious or may violate the State Bar
Rules of Professional Conduct. (GeneThera, Inc. v. Troy & Gould Professional Corp.
(2009) 171 Cal. App. 4th 901, 909-910; Home Ins. Co. v. Zurich Ins. Co., supra, 96
Cal.App.4th at p. 24; O’Neil v. Cunningham (1981) 118 Cal. App. 3d 466, 476; see
generally Rules Prof. Conduct, rule 5-100(A) [“A member shall not threaten to present
criminal, administrative, or disciplinary charges to obtain an advantage in a civil
dispute.”].)
1 Martel allegedly responded to a settlement offer by telling Litchfield that he and
Besana “should soak their settlement offer in Drano overnight, and then ‘shove [the dirty
rags] up [their] asses.’ ”
7
The privilege also bars the intentional infliction of emotional distress claim based
on alleged telephone messages and e-mails. Litchfield alleged that during the time he
represented Besana, Martel left obscene, threatening and abusive telephone messages for
him and sent him e-mails of a similar nature. Martel’s alleged telephone and e-mail
messages to Litchfield were communications made in the course of the lawsuit against
Besana by a litigant in that action and were logically connected with that action.
(Silberg, supra, 50 Cal.3d at p. 212; Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 31, 38
[litigation privilege bars defamation claim based on voicemail messages from attorney
for brother in a probate dispute between brother and sister].) Accordingly, the emotional
distress claim predicated on such telephone and e-mail messages was barred.
Litchfield maintains that the litigation privilege did not apply because the first
amended cross-complaint alleged criminal conduct. But courts have applied the privilege
to civil actions based on criminal acts. (Jacob B. v. County of Shasta (2007) 40 Cal. 4th
948, 956 (Jacob B.); Blanchard v. DIRECTV, Inc. (2004) 123 Cal. App. 4th 903, 921
[“ ‘communications made in connection with litigation do not necessarily fall outside the
privilege merely because they are, or are alleged to be, fraudulent, perjurious, unethical,
or even illegal’ assuming they are logically related to litigation. [Citation.]”]; Pettitt v.
Levy (1972) 28 Cal. App. 3d 484, 489; Kachig v. Boothe (1971) 22 Cal. App. 3d 626, 641.)
The litigation privilege applies to any category of publication permitted by law (such as
testimony provided in a judicial proceeding) even if the specific publication itself (for
example, perjurious testimony) was not permitted by law. (Jacob B., supra, 40 Cal.4th at
pp. 958-959; Rusheen, supra, 37 Cal.4th at p. 1058.) The privilege is simply a test of
connectedness or logical relationship to litigation. (Feldman v. 1100 Park Lane
Associates (2008) 160 Cal. App. 4th 1467, 1489.) As we have explained, Martel’s alleged
statements were communications that had a logical connection with his first lawsuit
against Besana.
8
Nonetheless, the litigation privilege does not apply to the alleged hang-up
telephone calls to Litchfield’s law office and the alleged slashing of Litchfield’s car tire,
because those acts were not communications. The litigation privilege immunizes only
communicative acts. (Rusheen, supra, 37 Cal.4th at p. 1058.) “The distinction between
communicative and noncommunicative conduct hinges on the gravamen of the action.
[Citations.] That is, the key in determining whether the privilege applies is whether the
injury allegedly resulted from an act that was communicative in its essential nature.
[Citations.]” (Rusheen, supra, 37 Cal.4th at p. 1058.) “[I]f the gravamen of the action is
communicative, the litigation privilege extends to noncommunicative acts that are
necessarily related to the communicative conduct . . . . Stated another way, unless it is
demonstrated that an independent, noncommunicative, wrongful act was the gravamen of
the action, the litigation privilege applies.” (Id. at p. 1065.)
Examining the gravamen of the action in Kimmel v. Goland (1990) 51 Cal. 3d 202,
the California Supreme Court concluded that the litigation privilege did not apply to the
unlawful recording of telephone conversations made in anticipation of litigation. (Id. at
pp. 211-212.) The Supreme Court distinguished the recording of the conversations from
the publication or broadcast of the information contained in the recorded conversations.
(Id. at p. 211.) Similarly, in Ribas v. Clark (1985) 38 Cal. 3d 355, 364-365, the defendant
could not avoid liability for unlawful eavesdropping on a telephone conversation, but was
immune from suit for his subsequent testimony regarding the conversation.
Here, the allegations that Martel made hang-up telephone calls and slashed
Litchfield’s car tire did not allege communications. As such, the litigation privilege did
not immunize Martel for those alleged acts. (Rusheen, supra, 37 Cal.4th at p. 1058.)
In sum, the litigation privilege covered and immunized from tort liability the
alleged threats to report Besana to government agencies, alleged threat to torture
Litchfield and Besana, and alleged abusive telephone calls and e-mails, but did not apply
to the alleged hang-up telephone calls and alleged slashing of Litchfield’s car tire. The
9
conclusion that the litigation privilege did not apply to bar the latter two categories of
alleged conduct does not, however, require reversal of the judgment. As we explain in
the next section, the allegations of repeated hang-up telephone calls and slashing
opposing counsel’s car tire did not assert extreme and outrageous conduct.
II
Litchfield next claims the first amended cross-complaint alleged sufficient facts to
state a cause of action for intentional infliction of emotional distress.
A claim for intentional infliction of emotional distress has the following elements:
(1) extreme and outrageous conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional distress; (2) severe emotional
distress suffered by the plaintiff; and (3) actual and proximate causation. (Hughes v. Pair
(2009) 46 Cal. 4th 1035, 1050.) A defendant’s conduct is extreme and outrageous when it
is “ ‘ “ ‘so extreme as to exceed all bounds of that usually tolerated in a civilized
community.’ ” ’ [Citation.]” (Ibid.) “ ‘[M]ere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities’ ” do not constitute extreme and outrageous
conduct. (Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 496 (Cochran), italics
omitted.) “ ‘[Instead t]he requirements [for establishing actionable conduct] are rigorous,
and difficult to satisfy. . . .’ [¶] On the spectrum of offensive conduct, outrageous
conduct is that which is the most extremely offensive. Depending on the idiosyncrasies
of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be
irritating, insulting or even distressing but it is not actionable and must simply be endured
without resort to legal redress.” (Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116,
1129.)
“There is no bright line standard for judging outrageous conduct and ‘ “. . . its
generality hazards a case-by-case appraisal of conduct filtered through the prism of the
appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by
the test appears to be more intuitive than analytical . . . .” [Citation.]’ [Citation.] Even
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so, the appellate courts have affirmed orders which sustained demurrers on the ground
that the defendant’s alleged conduct was not sufficiently outrageous. [Citation.]”
(Cochran, supra, 65 Cal.App.4th at p. 494.) The court initially determines whether the
defendant’s conduct may reasonably be regarded as so extreme and outrageous as to
permit recovery. (Fowler v. Varian Associates, Inc. (1987) 196 Cal. App. 3d 34, 44.)
In the context of this case, the alleged nonprivileged conduct -- hang-up telephone
calls to Litchfield’s law office and, on one occasion, slashing Litchfield’s car tire -- did
not meet the high threshold for outrageous conduct required by the law. For conduct to
be considered sufficiently outrageous it is not enough that the defendant had tortious
intent, or criminal intent, or intended to inflict emotional distress, or even that his conduct
is characterized by malice or a degree of aggravation that would entitle the plaintiff to
punitive damages for another tort. (Cochran, supra, 65 Cal.App.4th at p. 496.) Liability
has been found only where the conduct was so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious
and utterly intolerable in a civilized community. (Ibid.)
“ ‘Behavior may be considered outrageous if a defendant (1) abuses a relation or
position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff
is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably
with the recognition that the acts are likely to result in illness through mental distress.
[Citations.]’ ” (Agarwal v. Johnson (1979) 25 Cal. 3d 932, 946, disapproved on another
ground in White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 574, fn. 4.) But no such facts
are alleged here. There is also no allegation that Martel called Litchfield’s home or
called him at odd hours. (Golden v. Dungan (1971) 20 Cal. App. 3d 295, 310 [complaint
alleged extreme and outrageous conduct where the plaintiffs averred that defendants
caused a process server to pound on the door of the plaintiffs’ home at midnight with the
express intent of inflicting extreme mental suffering]; 4 Levy et al., Cal. Torts (2013)
11
Intentional Infliction of Emotional Distress, § 44.01[2][c][iii], p. 44-14 [conduct
involving a person’s home is a factor in finding outrageous conduct].)
Cochran, supra, 65 Cal. App. 4th 488, involved bitter feuding following the end of
a long-term relationship. (Id. at pp. 491-492) Plaintiffs Patricia Ann Cochran and her
daughter asserted that defendant Johnnie L. Cochran became enraged when they publicly
revealed their relationship with him. As punishment, he breached his agreement to
provide lifetime support, prompting a lawsuit. For several years and with increasing
frequency after the public disclosure of the relationship, the defendant threatened the
plaintiffs, including statements such as: “ ‘You know how powerful I am’ ” and “ ‘you'll
be sorry’ ”; that he would have them watched and followed wherever they went; that he
would sue any lawyer that represented them; and that the plaintiffs would never win a
lawsuit against him because he had friends in every court and could control the decisions
of any court hearing plaintiffs’ case. The defendant was a well-known attorney and the
plaintiffs believed he had the power and ability to cause the plaintiffs harm. The
defendant knew the plaintiffs were peculiarly susceptible to emotional distress. The
defendant, nonetheless, left a telephone message at Patricia’s home which the plaintiffs
understood as a serious threat. The message said the defendant would give the daughter
“ ‘ “the Value Jet around the world vacation package,” ’ ” referencing the crash of a
Value Jet airplane which killed all aboard. (Id. at pp. 492, 494-495, 497-499.)
Here, Litchfield does not allege how many hang-up phone calls Martel made and
over what period of time, except that Martel allegedly made six or seven hang-up calls
during a one- or two-hour period before slashing Litchfield’s car tire. But making hang-
up telephone calls to Litchfield’s office and slashing Litchfield’s car tire on one occasion
does not approach the level of outrageousness found inadequate to describe extreme and
outrageous conduct in Cochran, supra, 65 Cal. App. 4th 488. (See also Conboy v. AT & T
Corp. (2d Cir. 2001) 241 F.3d 242, 247, 258-259 [based on elements substantially similar
to those in California, a complaint asserting an intentional infliction of emotional distress
12
cause of action alleging 30 to 50 telephone calls placed to the plaintiff’s home at unusual
hours in the day by representatives of a creditor in an attempt to collect a credit card debt
fails to allege “ ‘extreme and outrageous conduct’ ”]; Oppenheim v. I.C. System, Inc.
(M.D.Fla. 2010) 695 F. Supp. 2d 1303, 1306, 1310 [in the context of an invasion of
privacy cause of action, placing 35 to 40 collection calls over a three-month period, in
some instances up to four or six times per day, was not sufficiently outrageous, even if
the conduct was annoying and bothersome]; Kent v. Harrison (Fla.Dist.Ct.App. 1985)
467 So. 2d 1114, 1115 [in a case affirming a directed verdict judgment on an intentional
infliction of emotional distress claim, harassing telephone calls that continued for several
months was not so outrageous and extreme in character as to go beyond all possible
bounds of decency].) Even though the alleged conduct was inappropriate and possibly
criminal, the demurrer was properly sustained because the alleged nonprivileged conduct
was insufficient to state a cause of action for intentional infliction of emotional distress.
III
Litchfield further claims the trial court abused its discretion because its demurrer
order contradicted its prior order denying Martel’s motion to strike the prayer for punitive
damages in Litchfield’s original cross-complaint. According to Litchfield, the trial
court’s prior order “validated the cause of action for intentional infliction of emotional
distress” in the original cross-complaint, whereas the demurrer order found the identical
allegations in the first amended cross-complaint failed to state a cause of action.
Defendant says the trial court “made a 180-degree change of position with regard to the
same cause of action,” and this reversal of position was an abuse of discretion.
Litchfield does not show that the trial court acted outside its discretion. In fact,
the record does not even support Litchfield’s claim that the trial court changed position
on the same cause of action. Martel moved to strike the prayer for punitive damages in
Litchfield’s original cross-complaint on the ground that, as a matter of law, punitive
damages were not recoverable for an intentional infliction of emotional distress cause of
13
action. The trial court denied Martel’s motion to strike because that prayer was
“supported by the allegations of the intentional infliction of emotional distress cause of
action.” In light of the notice of motion and the memorandum of points and authorities in
support of Martel’s motion to strike, the trial court’s order concluded that, as a matter of
law, a plaintiff may recover punitive damages for intentional infliction of emotional
distress. (Civ. Code, § 3294, subd. (a); Heller v. Pillsbury Madison & Sutro (1996) 50
Cal. App. 4th 1367, 1390.) The trial court was not asked to determine, and there is no
indication that it decided, whether Litchfield’s original cross-complaint stated a cause of
action for intentional infliction of emotional distress. Accordingly, Litchfield’s claim of
abuse of discretion fails.
IV
Litchfield next argues the trial court abused its discretion in giving Martel four
attempts to correct his pleading against Litchfield but giving Litchfield only one chance
to amend his cross-complaint against Martel.2 Once again, Litchfield has not established
any abuse of discretion.
Although it is generally an abuse of discretion to sustain a demurrer without leave
to amend if there is any reasonable possibility that the defect can be cured by amendment,
the plaintiff bears the burden of showing in what manner he or she can amend the
complaint and how such amendment will change the legal effect of the complaint.
(Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349; Paterno v. State of California (1999)
74 Cal. App. 4th 68, 110.) Neither the opposition to the demurrer that Litchfield filed in
the trial court nor the briefs Litchfield filed on appeal set forth any proposed
amendments. Litchfield fails to carry his burden. (Goodman v. Kennedy, supra, 18
Cal.3d at p. 349; Paterno v. State of California, supra, 74 Cal.App.4th at p. 110.)
2 Litchfield’s assertions are wrong. The trial court only gave Martel one opportunity to
amend his complaint against Litchfield.
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V
Litchfield also challenges the denial of his motion to disqualify Judge Larry
Gaddis pursuant to section 170.1 of the Code of Civil Procedure.
A writ of mandate is the exclusive means of seeking review of a ruling on the
recusal motion. (Code of Civ. Proc., § 170.3, subd. (d); People v. Panah (2005) 35
Cal. 4th 395, 444.) As Litchfield did not seek review by this court via writ of mandate,
his claim is not properly before us.
VI
Litchfield also asks us to disregard the respondent’s brief because it fails to
comply with California Rules of Court, rule 8.204. We find merit in the request.
The respondent’s brief fails to cite any legal authority for the arguments made
therein and fails to provide citations to the record, in violation of California Rules of
Court, rule 8.204(a)(1). Claims not supported by legal analysis and citation to authority
are forfeited. (Okasaki v. City of Elk Grove (2012) 203 Cal. App. 4th 1043, 1045, fn. 1;
Keyes v. Bowen (2010) 189 Cal. App. 4th 647, 656 [“It is the appellant’s responsibility to
support claims of error with citation and authority; this court is not obligated to perform
that function on the appellant’s behalf.”].)
Additionally, the respondent’s brief refers to matters that are not part of the
appellate record. We do not consider matters outside the record which were included in
the respondent’s and appellant’s briefs. (Connecticut Indemnity Co. v. Superior Court
(2000) 23 Cal. 4th 807, 813, fn. 2.)
Martel requests an order requiring Litchfield to pay him at least $7,500 in
sanctions for filing a “frivolous and improper appeal.” The request is made in a summary
fashion in the conclusion section of the respondent’s brief. On the motion of a party, an
appellate court may impose sanctions on a party for taking a frivolous appeal or
appealing solely to cause delay. (Cal. Rules of Court, rule 8.276(a)(1); Code Civ. Proc.,
§ 907.) But Martel did not file a noticed motion for sanctions or submit a declaration
15
supporting the amount of monetary sanctions sought. (Cal. Rules of Court, rules 8.54,
8.276(b)(1); Cowan v. Krayzman (2011) 196 Cal. App. 4th 907, 919 [denying sanctions
request made in respondent’s brief]; Bak v. MCL Financial Group, Inc. (2009) 170
Cal. App. 4th 1118, 1127-1128.) Even if a request for sanctions could be made in the
respondent’s brief, the request would fail because Martel did not request sanctions under
a separate heading and did not support that point with argument and citation to authority.
(Cal. Rules of Court, rule 8.204(a)(1).)
DISPOSITION
The judgment is affirmed.
MAURO , J.
We concur:
NICHOLSON , Acting P. J.
ROBIE , J.
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