Harrington v. County of El Dorado CA3 ( 2021 )

Filed 11/18/21 Harrington v. County of El Dorado 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
LYNN D. HARRINGTON, C092559
Plaintiff and Appellant, (Super. Ct. No. PC20160402)
v.
COUNTY OF EL DORADO,
Defendant and Respondent.
Lynn D. Harrington appeals from an order awarding attorney fees and costs to the
County of El Dorado (County) under Code of Civil Procedure section 1038.1 Harrington
was ordered to pay $121,837.50 in attorney fees and $11,637.85 in costs after the trial
court found that her sole witness at trial was “wholly not credible.” On appeal,
1 Undesignated statutory citations are to the Code of Civil Procedure.
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Harrington contends (1) insufficient evidence supported the findings that she acted
without good faith in bringing this action and that she lacked reasonable cause to
maintain the action, (2) the trial court erroneously held her to a heightened legal standard
for showing that she acted in good faith and with reasonable cause, and (3) the award of
fees violated her right to a jury trial.
We deem Harrington’s substantial evidence challenges to be forfeited for failure to
provide a sufficient record to facilitate review. We are not persuaded by Harrington’s
attempt to show that the trial court employed the wrong legal standard in imposing
attorney fees and costs under section 1038. As to her claim that she was denied her right
to a jury trial, we reject her argument because she received a jury trial. Accordingly, we
affirm.
BACKGROUND
In August 2016, Harrington filed a complaint against the County based on her
allegations that the County’s parking lot caused excessive amounts of water to flow onto
her property and damage her residence during times of heavy rains. The complaint
further alleged that Harrington had complied with the Government Claims Act (Gov.
Code, § 810 et seq.) by receiving a “ ‘right to sue letter’ ” from the County before filing
her action in superior court. Specifically, the complaint alleged that the County
acknowledged receiving Harrington’s tort claim on April 18, 2016.
The County filed an answer in which it denied receiving a tort claim from
Harrington as required by Government Code section 905. Also in the answer, the County
requested fees and costs under section 1038. The County reiterated its intention to seek
attorney fees and costs under section 1038 in a meet-and-confer letter that it sent to
Harrington’s attorney, Timothy Hamilton. Harrington has omitted this letter, and
numerous other attachments, from the appellate record. A description of the letter
indicates that Andrew Caulfield, counsel for the County, informed Harrington that there
was no evidence of proof of service of the tort claim on the County.
2
Hamilton responded that “he had a proof of service from April and would provide
it.” When Hamilton did not provide the promised proof of service, the County served a
formal discovery request for the proof of service and issued a subpoena to the process
server, Terry Nelsen. On May 25, 2017, Nelsen informed the County “that he had a
proof of service from April 2016 relating to service of a tort claim on the County.”
Although Nelsen promised to provide the proof of service to Caulfield, Nelsen did not do
so.
On May 31, 2017, Caulfield received a motion for leave to file a first amended
verified complaint. Attached to the proposed first amended complaint was a declaration
of Harrington with an exhibit showing a proof of service that was purportedly served in
2016. The proof of service form, however, bore a Judicial Council of California revision
date of 2017. Nelsen later provided the same 2016 proof of service form to the County
but “did not explain how Nelsen could have signed a proof of service form on April 27,
2016 when the proof of service form was not in circulation until 2017. Similar to
Harrington’s Declaration, there was no mention in Nelsen’s Declaration that he was
attaching a copy of a proof of service he executed in 2017 that was meant to replace an
original signed in 2016 that had somehow gone missing.”2
The County deposed Harrington over the course of two days. Caulfield would
declare, “At no point in time during her two separate days of deposition, did
[Harrington], or her attorney who was actively defending the deposition, mention that
there was some prior, original proof of service executed by Nelsen and purporting to
2 The record suggests that Harrington may have served a tort claim, albeit
defectively. She picked up a form but could not remember from where she got it. The
tort claim appears to have been made on a form provided by the El Dorado County
Emergency Services Authority (JPA). Nelsen served the form on the JPA – not the
County. El Dorado County is not a member of the JPA. There is no argument that the
service on the JPA meets the requirement to present the tort claim to the County before
suing the County.
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attest to service of a claim on the County that had somehow gone missing and what was
being discussed repeatedly at deposition was a replacement proof of service.”
The County pursued a deposition of Nelsen. “After approximately ten months of
evading multiple process servers hired by the County to serve Nelsen with a deposition
subpoena, and after first disobeying two deposition subpoenas by failing to appear at
deposition, Nelsen finally presented himself for deposition on March 28, 2018. At no
point during his deposition did Nelsen, or Mr. Hamilton, who was defending the
deposition, in any way suggest or indicate that the proof of service being discussed
during the deposition was a ‘replacement’ for an original that had somehow gone missing
or been lost.” During his deposition, Nelsen affirmed that he signed the proof of service
within two weeks of April 27, 2016. However, the proof of service bears the Judicial
Council revision date of February 1, 2017. Nelsen could not explain why he waited
exactly a year to send an invoice for the proof of service.
During his deposition, Nelsen testified that he received three telephone calls from
unknown persons offering him money to change his testimony to say that he never signed
the proof of service. Nelsen first asserted that the caller was from the law office
representing the County. He later equivocated, saying that it was only an unidentified
male.
After Nelsen’s deposition, the County moved for terminating sanctions in April
2018. Harrington opposed the motion. In support of the opposition, Hamilton declared
that the proof of service previously submitted was merely a “replacement proof of
service.” Hamilton purportedly secured this replacement proof of service after he
discovered that the original proof of service was missing from the superior court file.
Hamilton further declared that the absence of the original proof of service from the
superior court file lead him “to believe that the county set some sort of trap because but
for missing documents from the court file, the county would not have any grounds to
bring the [motion for terminating sanctions].” Hamilton’s declaration does not explain
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why he did not previously inform anyone that the proof of service was a replacement for
a lost original. Harrington’s opposition also argued that she did not give knowingly false
information when she testified that she received a copy of – or at least saw – the original
proof of service. The opposition also argued that Nelsen did not perjure himself during
his deposition testimony.
On a law and motion calendar, the trial court denied the motion for terminating
sanctions. In denying the motion, the trial court explained: “Though the court is
concerned about the process server’s testimony related to when the proof of service filed
on May 15, 2017 was executed, he always consistently maintained in his testimony that
the proof of service accurately reflected he actually served the tort claim on the County
on April 27, 2016.” The matter proceeded to a jury trial.
Trial was bifurcated. The sole issue during the first phase of trial concerned
whether Harrington timely served her tort claim on the County. During the motions in
limine prior to trial, Hamilton stipulated to exclude Nelsen’s story about three phone calls
seeking to bribe him into changing his deposition testimony. Hamilton also represented
to the court that Nelsen would be the only witness for the plaintiff. Hamilton stated, “The
Plaintiff has no idea whether [Nelsen] did his job or not.”
The issue of service of Harrington’s tort claim on the County was tried to a jury.
Harrington has not provided a complete reporter’s transcript of the trial. Indeed,
Harrington has provided a cut-off portion of Nelsen’s testimony at trial. Harrington has
included some of her attorney’s closing argument, but no portion of the County’s closing
argument.
The portion of the reporter’s transcript included in the appellant’s appendix shows
Nelsen testified: The proof of service to which he referred during this deposition was “a
recreation of the original,” but Nelsen could not explain why he had not mentioned that it
was a recreation. The following colloquy occurred:
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“Q. [(by counsel for the County)] So your testimony that you signed it under oath
when you testified you signed it in 2016 was incorrect; isn’t that true?
“A. [(by Nelsen)] Yes. From the date that I did this to the deposition was two
years. [¶] . . . [¶]
“Q. Mr. Nelsen, is there a reason why you didn’t tell us about the original Proof
of Service that the Court lost at your deposition?
“A. I don’t recall why I didn’t tell you about it. I don’t know.”
Nelsen admitted that no proof of service before May 15, 2017, was ever filed with
the trial court.
The County produced testimony from seven witnesses in support of its defense
that Harrington never served the claim as required by Government Code section 905.
The reporter’s transcript does not contain any of the testimony of the witnesses for the
defense.
The jury returned a special verdict finding that Harrington had not served a tort
claim on the County prior to filing her action in superior court on August 31, 2016.
Harrington and the County stipulated to a directed verdict on all causes of action in the
second amended complaint that required presentation of a claim under Government Code
section 905.
The County filed a motion for attorney fees and costs under section 1038.
Harrington opposed the motion. The trial court heard the matter, and ordered Harrington
to pay $121,837.50 in attorney fees and $11,637.85 in costs. From the order imposing
attorney fees and costs, Harrington timely filed a notice of appeal.
DISCUSSION
I
Substantial Evidence Challenge
Harrington challenges the sufficiency of the evidence in support of the trial court’s
findings that she acted without good faith in bringing this action and that she lacked
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reasonable cause to maintain the action. The argument is deemed forfeited because
Harrington has not provided an adequate appellate record to facilitate review of her
substantial evidence claims.
A.
Trial Court Findings
In ordering attorney fees and costs under section 1038, the trial court made
findings of fact based largely on exhibits attached to a declaration by Caulfield, the
County’s attorney. The trial court found that Harrington’s first amended complaint
contained “a Declaration from Ms. Harrington with a proof of service for the tort claim
attached to her declaration. (Andrew Caulfield’s Dec. in Support, para. 16-19, Ex. 7-9.)
Neither Ms. Harrington nor Mr. Hamilton could explain why Mr. Nelsen (his name is
also misspelled on the signature line) signed the proof of service on April 27, 2016,
despite the fact that the Judicial Council form had not been created until February 1,
2017. (Andrew Caulfield’s Decl. in Support, para. 20, Ex. 10.) The jury found there was
not a tort claim served on the County. In fact, after a difficult time getting Mr. Nelsen to
a deposition (Andrew Caulfield’s Decl. in Support, para. 23-24, Ex. 12.), neither Ms.
Harrington nor Mr. Nelsen indicated in their depositions the April 27, 2016 proof of
service was a ‘replacement.’ (Andrew Caulfield’s Decl. in Support, para. 20-21, Ex. 10;
para 23-24, Ex. 12.) At trial, the jury found Ms. Harrington did not service a tort claim
on the County, reflecting there was no viable or credible explanation from Mr. Nelsen, or
anyone else, related to these inconsistencies on the proof of service.” The trial court
further found Hamilton knew there was not valid proof of service for the tort claim prior
to filing the complaint in superior court. The order also explained, “Based on the
aforementioned facts and the facts below and given the complete lack of cooperation by
Mr. Hamilton when Mr. Caulfield requested the requisite documentation starting on April
20, 2017, the Court finds plaintiff lacked good faith.”
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Even though the trial court expressly relied on the exhibits attached to the
Caulfield declaration in making its findings, Harrington has omitted the exhibits from her
appellate appendix.
B.
Appellant’s Duty to Produce an Adequate Appellate Record
A cardinal rule on appeal requires us to presume that the order of a trial court is
correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Moreover, we
draw all inferences and presumptions in favor of the correctness of the appealed-from
order. (Ibid.) As a corollary, “[t]he appellant must affirmatively demonstrate error by an
adequate record. In the absence of a contrary showing in the record, all presumptions in
favor of the trial court's action will be made by the appellate court. ‘If any matters could
have been presented to the court below which would have authorized the order
complained of, it will be presumed that such matters were presented.’ [Citations.]”
(Bennett v. McCall (1993) 19 Cal.App.4th 122, 127 (Bennett), quoting Buckhart v. San
Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036.) In short,
“[i]njury is not presumed from error, but injury must appear affirmatively upon the
court’s examination of the entire record.” (In re Marriage of McLaughlin (2000) 82
Cal.App.4th 327, 337, italics added (McLaughlin).)
C.
Forfeiture
Harrington argues the order lacked substantial evidence in support of the findings
that the action was not brought with reasonable cause or in the good faith belief there was
a justifiable controversy. However, she omits from the record the very evidence relied
upon by the trial court in making its findings, i.e., the exhibits to the Caulfield
declaration. Moreover, Harrington provides only that portion of the reporter’s transcript
that contains part of the testimony of her witness, Nelsen. However, the trial court found
Nelsen “wholly not credible.” Harrington omits from the appellate record any part of the
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testimony offered by the County’s witnesses at trial in support of the defense that
Harrington never properly filed her tort claim under Government Code section 905.
Indeed, Harrington’s appellate appendix does not even contain a copy of her operative
complaint. It is easy to claim insufficient evidence in support of an order when omitting
all evidence relied upon by the trial court in making that order. It is also an ineffective
claim because we deem it forfeited for lack of an adequate appellate record. (Bennett,
supra, 19 Cal.App.4th at p. 127; McLaughlin, supra, 82 Cal.App.4th at p. 337.)
II
Evidentiary Standard
This court has previously explained that “ ‘[t]o avoid paying defense costs under
section 1038, plaintiff must show he or she filed and pursued the action with “reasonable
cause and in the good faith belief that there was a justifiable controversy under the facts
and law which warranted the filing of the complaint.” ’ ” (Ponte v. County of Calaveras
(2017) 14 Cal.App.5th 551, 559, italics omitted.) Harrington argues that the trial court
held her to a heightened evidentiary standard for showing that she acted in good faith and
with reasonable cause to maintain her action against the County. We are not persuaded.
As to the first prong regarding good faith, Harrington argues “that finding is
unsupported by any evidence.” Her argument is forfeited for lack of an adequate
appellate record. (See part I.C., ante.)
As to the second prong regarding reasonable cause, we reject Harrington’s claim
that “[t]he mere existence of the unresolved conflict on a material issue of fact establishes
‘reasonable’ and ‘probable’ cause as a matter of law.” As this court has previously noted,
“the recognized purpose of section 1038 is to discourage frivolous lawsuits by allowing
blameless public entities to recover their defense costs.” (Hall v. Regents of University of
California (1996) 43 Cal.App.4th 1580, 1587 (Hall).) “ ‘Reasonable cause is to be
determined objectively, as a matter of law, on the basis of the facts known to the plaintiff
when he or she filed or maintained the action. Once what the plaintiff (or his or her
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attorney) knew has been determined, or found to be undisputed, it is for the court to
decide “ ‘Whether any reasonable attorney would have thought the claim
tenable . . . .’ ” ’ ” (Id. at p. 1586, italics omitted & added, quoting Knight v. City of
Capitola (1992) 4 Cal.App.4th 918, 932.)
Here, the trial court expressly found that “Hamilton knew plaintiff’s lawsuit did
not have a valid proof of service for the tort claim prior to filing the original Complaint.”
(Italics added.) This knowledge is imputed to Harrington. (Hall, supra, 43 Cal.App.4th
at p. 1586.) Consequently, Harrington filed and maintained an action known to be barred
by the failure to comply with Government Code section 905. The trial court properly
concluded that this was unreasonable and authorized attorney fees under section 1038.
Harrington asserts that “[n]o evidence supports this finding” that Hamilton
actually knew her lawsuit lacked a proof of service for any tort claim under Government
Code section 905. As we explain in part I.C., above, the appellate record submitted by
Harrington precludes any challenged to the sufficiency of the evidence in support of the
trial court’s order granting fees and costs under section 1038. Harrington has not
demonstrated error.
III
Right to Jury Trial
Finally, Harrington argues that “the trial court’s ruling awarding attorneys’ fees to
resolve a stipulated issue of material fact violated [her] right to a jury trial.” This
argument is frivolous.
Harrington actually got a jury trial. During the two-day jury trial, Harrington was
represented by legal counsel, her attorney introduced evidence on her behalf, and her
attorney tendered arguments on her behalf. A jury deliberated and reached a verdict.
Harrington acknowledges she chose to proceed by jury trial. Even so, it appears that
Harrington believes that she was denied the right to a jury trial because she was
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subsequently ordered to pay attorney fees imposed under section 1038.3 She laments that
“[t]rials are inherently unpredictable, and no competent attorney would presume to
predict with certainty which witnesses the jury will deem credible.” Harrington seems to
argue that she is being “punished for invoking and exercising her constitutional right of
trial by jury” because she now has to pay attorney fees for bringing an action that was
barred.
Harrington forgets that the record establishes her sole witness was “wholly not
credible” and that her attorney knew her lawsuit was filed without the requisite claim
made to the County. The right to a jury trial is not the right to win. Instead, the right to a
jury trial encompasses the opportunity to present evidence and to have a jury determine
the pertinent factual issues. (United States v. Scheffer (1998) 523 U.S. 303, 308 [140
L.Ed.2d 413].) The right to present evidence, however, is not unlimited. Instead, the
right extends only to the opportunity to present reliable evidence. (Id. at p. 309.)
Accordingly, we reject Harrington’s argument that she was denied the right to a jury trial.
3 Harrington does not appear to challenge the award of costs to the County.
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DISPOSITION
The order awarding attorney fees and costs under Code of Civil Procedure section
1038 is affirmed. The County shall recover its costs on appeal. (Cal. Rules of Court, rule
8.278(a)(1) & (2).)
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
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