Yaghobyan v. Romero CA2/3

Filed 3/15/23 Yaghobyan v. Romero CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
HASMIK YAGHOBYAN, B312738
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC704116)
v.
ALAN ROMERO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gregory Keosian, Judge. Affirmed.
Law Offices of Reshma Kamath and Reshma Kamath for
Plaintiff and Appellant.
Alan Romero, in pro. per., and for Defendant and
Respondent Romero Law, APC.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Respondents Alan Romero, an attorney, and Romero Law,
APC (collectively, Romero) represented appellant Hasmik
Yaghobyan and her three adult children in an action against
several public entities in 2013. After Romero substituted out of
that action, he sued Yaghobyan for unpaid costs and fees and
obtained a default judgment against her. Yaghobyan then filed
the present action against Romero for a variety of causes of
action based on Romero’s alleged professional negligence in his
handling of her 2013 case. The trial court granted Romero’s
motion for judgment on the pleadings, finding that the judgment
for Romero in the fee action precluded Yaghobyan’s present
claims.
Yaghobyan contends the trial court erred in granting the
motion for judgment on the pleadings because the fee action and
the present action are based on different legal theories, and thus
the fee action did not preclude the present one. We find no error,
and thus we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The prior fee action.
In 2013, Yaghobyan and her three adult children retained
Romero to represent them in an action against the Simi Valley
Police Department and others (the Simi Valley action). The
parties executed a written retainer agreement in which Romero
represented that he would “deliver the best possible legal services
in a timely fashion and at a reasonable price,” and Yaghobyan
agreed to pay Romero’s fees and costs. Romero substituted out of
the Simi Valley action in September 2013.
In August 2015, Romero filed a complaint against
Yaghobyan and her children for breach of contract and account
2
stated (case No. BC591638) seeking unpaid legal fees and costs
incurred in the Simi Valley action. In October 2015, defaults
were entered against Yaghobyan’s children, and in December
2016, Romero dismissed Yaghobyan without prejudice,
apparently because she was then in bankruptcy proceedings. In
March 2017, the court entered default judgments against
Yaghobyan’s children.
In January 2018, Romero filed a new action for breach of
contract and account stated against Yaghobyan (case No.
EC067715). The complaint alleged Yaghobyan and Romero had
entered into a written retainer agreement pursuant to which
Romero agreed to pursue legal action for Yaghobyan, and
Yaghobyan agreed to advance litigation costs and pay Romero an
hourly rate for legal services. The complaint further alleged that
Romero had “performed all the acts, services, and conditions
required by [the retainer agreement] to be performed on its part,”
and “all the conditions that were required for [Yaghobyan’s]
performance occurred and were not excused.” Accordingly,
Romero was entitled to recover “the reasonable value of [his]
services,” plus “costs and expenses [incurred] on behalf of
[Yaghobyan] in the sum of $39,443.66.”
Yaghobyan did not file an answer to the complaint.
Accordingly, the court entered Yaghobyan’s default in May 2018,
and entered a default judgment of $59,193.60 against her in June
2018.1
1 Yaghobyan has not included in the appellate record
Romero’s declaration pursuant to Code of Civil Procedure
section 585, subdivision (d) in support of the default judgment,
and thus we do not know precisely how the trial court calculated
3
In July 2018, the court ordered case Nos. BC591638 and
EC067715 related, and it designated case No. BC591638 the lead
case.
II. The present malpractice action.
Yaghobyan and her children filed the present action
against Romero in April 2018, and filed the operative first
amended complaint (FAC) in May 2019.2 The FAC alleged that
Yaghobyan retained Romero to represent her and her children in
the Simi Valley action, but Romero performed “negligently and
carelessly.” Specifically, Romero did not seek appropriate
discovery, failed to review the FAC before filing it with the court,
and did not correct the trial court’s error in dismissing Glendale
and the Glendale Police Department. As a result, Yaghobyan
ended the relationship with Romero in September 2013, but she
“never recovered from Romero’s mistakes and carelessness.”
Yaghobyan alleged that Romero’s conduct gave rise to six
causes of action:
(1) Breach of contract—Romero breached the retainer
agreement by failing “to perform all legal services which were
required to represent [Yaghobyan’s] interest in compliance with
the standard and duty of care.”
the amount of the judgment. However, the judgment appears to
represent the amount of Romero’s costs pled in the complaint
($39,443) plus about five years of prejudgment interest at the
statutory rate of 10 percent per year. ($39,443 + ($39,443 x .1
x 5) = $39,443 + $19,721 = $59,164.)
2 Yaghobyan’s children were plaintiffs below but are not
parties to this appeal.
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(2) Professional negligence—Romero breached his duty
of care “by failing to discharge same in compliance with the
standard as duty of care like professionals under like
circumstances [sic].”
(3) Fraud—Romero “owed a duty to [Yaghobyan] to
investigate, inquire, inspect, research and learn the material
facts that might affect [Yaghobyan’s] decision in [her lawsuit],”
but he “failed to do so and then deceived [Yaghobyan] as to
same.”
(4) Negligence—Romero committed acts of negligence by
“negligently making false representations to [Yaghobyan] or
failing to verify the representations made to [Yaghobyan],” which
was “below the standard of care for an attorney[].”
(5) Unjust enrichment—Romero “failed to perform and
breached” the retainer agreement, but nonetheless obtained
judgments for more than $50,000 against Yaghobyan and her
children.
(6) Defamation—Romero “portrayed [Yaghobyan] as a
liar and a fraudster in public,” including in his court filings and
emails.
In September 2020, Romero moved for judgment on the
pleadings. He asserted that the default judgment entered in the
fee action against Yaghobyan conclusively established that he
“performed all the acts, services, and conditions required by the
contract” and “rendered legal services in accordance, and in
compliance, with, the fee agreement.” Yaghobyan could not
relitigate these issues in the present action, and thus she could
not prevail on her first five causes of action, all of which arose out
of the legal services contract. Yaghobyan also could not prevail
on her sixth cause of action for defamation because all of
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Romero’s allegedly defamatory statements were made in court or
in court filings, and thus were subject to the litigation privilege.
Yaghobyan opposed the motion for judgment on the
pleadings. She asserted that Romero was judicially estopped
from asserting issue preclusion, and she was not relitigating any
previously litigated claims or issues because her claims for
breach of contract, fraud, negligence, and professional negligence
were based on breach of an oral agreement and were supported
by conduct that occurred after the default judgment was entered.
The trial court granted the motion for judgment on the
pleadings. It noted that issue preclusion bars relitigation of an
issue “identical to one presented in a prior proceeding, which was
actually litigated, necessarily decided, and which resulted in
judgment on the merits.” Although nothing is “ ‘actually
litigated’ ” when a judgment is by default, “a longstanding rule
holds that a default judgment is ‘as conclusive as to the issues
tendered by the complaint as if it had been rendered after answer
filed and trial had on allegations denied by the answer.’ ”
Romero alleged in the fee action that he performed all services
required by the legal services contract, thus precluding
Yaghobyan’s litigation of his alleged breaches of the duty of care
in that same representation as asserted in the first five causes of
action. Further, Yaghobyan’s contention that the issues she
hoped to litigate in this action were not raised in Romero’s fee
action “is false. The FAC’s claims of breach of contract, fraud,
and professional and general negligence arise from Romero’s
alleged representations by which he induced Yaghobyan to enter
into the agreement that formed the basis for the prior action, [so]
the judgment of the prior action is conclusive as to the existence
and validity of the agreement. Likewise, Yaghobyan’s claims
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that Romero failed to perform his professional obligations as
promised under the agreement are barred by the conclusive
determination in the prior action that Romero performed all
obligations under the agreement.”
The court concluded, finally, that the litigation privilege
barred Yaghobyan’s sixth cause of action for defamation. It
explained: “Statements offered in motions, pleadings, and court
proceedings are absolutely privileged . . . . Moreover, the
statements to others that Yaghobyan alleges are made to those
who have signed the proofs of service in this case. [Citation.]
Indeed, in Yaghobyan’s motion for leave to file an amended
complaint, she admits that the defamatory statements are
Romero’s statements to these third parties alleging that
Yaghobyan is forging their signatures on proofs of service.
[Citation.] These are communications in a judicial proceeding to
those involved[,] designed to achieve the objects of the litigation
that have a connection with the action. Yaghobyan offers no
argument in opposition challenging Romero’s contentions on this
point.”
The court entered judgment for Romero on February 8,
2021, and notice of entry of judgment was served on February 11,
2021. Yaghobyan timely appealed.
DISCUSSION
I. Standard of review.
“ ‘Because a motion for judgment on the pleadings is
similar to a general demurrer, the standard of review is the
same.’ (Baughman v. State of California (1995) 38 Cal.App.4th
182, 187.) Thus, ‘[w]e independently review the trial court’s
ruling on a motion for judgment on the pleadings to determine
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whether the complaint states a cause of action. [Citation.] In
doing so, we accept as true the plaintiff’s factual allegations and
construe them liberally. [Citation.] If the trial court’s ruling on a
motion for judgment on the pleadings is correct upon any theory
of law applicable to the case, we will affirm it.” (Tukes v. Richard
(2022) 81 Cal.App.5th 1, 18–19; see also Towery v. State of
California (2017) 14 Cal.App.5th 226, 231 [same].)
II. The trial court properly granted Romero’s motion
for judgment on the pleadings.
Yaghobyan contends that the trial court erred by
concluding that Romero’s default judgment in the prior action
precluded Yaghobyan’s claims here. For the reasons that follow,
Yaghobyan’s contention lacks merit.3
A. Legal principles.
The law of preclusion is designed to ensure that a dispute
resolved in one case is not relitigated in a later case. (Samara v.
Matar (2018) 5 Cal.5th 322, 326 (Samara).) There are two forms
of preclusion: claim preclusion and issue preclusion. (Id. at
p. 326 & fn. 1.) Claim preclusion prevents relitigation of entire
causes of action (id. at p. 326), while issue preclusion prevents
“ ‘relitigation of previously decided issues’ ” (id. at p. 327). As
relevant here, issue preclusion applies: (1) after a final judgment
3 Yaghobyan makes no claims of error as to the sixth cause of
action for defamation, and thus any such claim is forfeited. (See,
e.g., People v. Sorden (2021) 65 Cal.App.5th 582, 603 [appellant’s
failure to present reasoned argument and legal authorities in
support forfeits issue on appeal]; Badie v. Bank of America (1998)
67 Cal.App.4th 779, 784–785 [same].) We therefore will address
on the merits only the first through fifth causes of action.
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on the merits (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one
who was a party in the first suit or one in privity with that party.
(Id. at p. 327, citing DKN Holdings LLC v. Faerber (2015)
61 Cal.4th 813, 824.)
An issue was “actually litigated” for purposes of issue
preclusion “if it was properly raised, submitted for determination,
and decided in the prior proceeding,” even if “some factual
matters or legal theories that could have been presented with
respect to that issue were not presented.” (Bridgeford v. Pacific
Health Corp. (2012) 202 Cal.App.4th 1034, 1042.) An issue was
“necessarily decided” if it was not “ ‘ “entirely unnecessary” ’ to
the judgment in the initial proceeding.” (Samara, supra,5 Cal.5th at p. 327, citing Lucido v. Superior Court (1990)
51 Cal.3d 335, 342.)
California accords preclusive effect to default judgments.
(Steven M. Garber & Associates v. Eskandarian (2007)
150 Cal.App.4th 813, 823 [“ ‘[a] judgment by default is said to
“confess” the material facts alleged by the plaintiff, i.e., the
defendant’s failure to answer has the same effect as an express
admission of the matters well pleaded in the complaint. The
judgment is, in consequence, res judicata on the issue of the right
to the relief awarded’ ”], italics omitted; Gottlieb v. Kest (2006)
141 Cal.App.4th 110, 149 (Gottlieb) [California “accords collateral
estoppel effect to default judgments”]; In re Williams’ Estate
(1950) 36 Cal.2d 289, 293 [“ ‘A default judgment is an estoppel as
to all issues necessarily litigated therein and determined thereby
exactly like any other judgment’ ”].) Although nothing is
“actually litigated” prior to entry of default judgment, a default
judgment “ ‘ “conclusively establishes, between the parties so far
9
as subsequent proceedings on a different cause of action are
concerned, the truth of all material allegations contained in the
complaint in the first action, and every fact necessary to uphold
the default judgment; but such judgment is not conclusive as to
any defense or issue which was not raised and is not necessary to
uphold the judgment.” ’ ” (Gottlieb, at p. 149, italics added,
quoting Four Star Electric, Inc. v. F & H Construction (1992)
7 Cal.App.4th 1375, 1380.)
B. Analysis.
Romero’s complaint in the fee action against Yaghobyan
alleged that Romero and Yaghobyan entered into a written
retainer agreement in which Romero agreed to represent
Yaghobyan in a lawsuit, and that Romero “performed all the acts,
services, and conditions required by the contract to be performed
on [his] part.” The complaint further alleged that “all the
conditions that were required for [Yaghobyan’s] performance
occurred and were not excused,” but that Yaghobyan “has not
paid any part” of the fees and costs due to Romero. The entry of
the default judgment “ ‘ “conclusively establishe[d]” ’ ” the truth
of these allegations (Gottlieb, supra, 141 Cal.App.4th at p. 149),
and thus it is established for purposes of the present action that
Romero “performed all the acts, services, and conditions required
by the [retainer agreement] to be performed on [his] part,” that
“all the conditions that were required for [Yaghobyan’s]
performance occurred and were not excused,” and that
Yaghobyan breached the retainer agreement by failing to pay
Romero’s fees and costs.
These findings preclude Yaghobyan’s first and fifth causes
of action. The first cause of action for breach of contract alleges
that Yaghobyan “performed all obligations under [the retainer
10
agreement,” but that Romero breached the retainer agreement by
“[f]ailing to act competently as legal counsel for [Yaghobyan].”
The fifth cause of action for unjust enrichment similarly alleges
that Romero obtained judgment against Yaghobyan for more
than $50,000 even though he “failed to perform and breached the”
retainer agreement. These allegations are manifestly
inconsistent with the facts established by the judgment in the fee
case—that is, that Romero fully performed under the retainer
agreement, but that Yaghobyan failed to do so—and thus the
trial court properly concluded that Yaghobyan could not state a
claim for breach of contract or unjust enrichment.
The judgment in the fee case also precludes the second,
third, and fourth causes of action (professional negligence, fraud,
and negligence). Each of these causes of action sounds in
professional negligence, alleging that Romero “breached [his]
duty of care” by failing to act as a “[competent] professional”
(second cause of action), breached his duty to “investigate,
inquire, inspect, research and learn the material facts that might
affect [Yaghobyan’s] decision in [the Simi Valley action]” (third
cause of action), and acted “below the standard of care for an
attorney[]” (fourth cause of action). Each of these causes of
action, therefore, depends on Yaghobyan’s ability to prove that
Romero failed to act as a competent attorney in his
representation of Yaghobyan.
The findings in the fee action that Romero performed all of
the acts required of him in his representation of Yaghobyan
precludes Yaghobyan’s second through fourth causes of action.
Implicit in every contract for legal services is a promise to
exercise appropriate professional skill and care. As our Supreme
Court has explained: “Since in the usual case, the attorney
11
undertakes to perform his duties pursuant to a contract with the
client, the attorney’s failure to exercise the requisite skill and
care is also a breach of an express or implied term of that
contract. Thus legal malpractice generally constitutes both a tort
and a breach of contract.” (Neel v. Magana, Olney, Levy, Cathcart
& Gelfand (1971) 6 Cal.3d 176, 181 fns. omitted (Neel); see also
GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3
Cal.App.5th 1240, 1250 [quoting Neel]; Jackson v. Rogers & Wells
(1989) 210 Cal.App.3d 336, 342 [same].)
Because every legal services contract contains an implicit
promise to exercise appropriate professional skill and care, the
finding in the fee action that Romero performed all the acts,
services, and conditions required by the retainer agreement
necessarily includes a finding that he performed all required
legal services with the requisite skill and care. This finding is
conclusive in the present action, and thus it is dispositive of
Yaghobyan’s second, third, and fourth causes of action, each of
which depend on finding that Romero acted below the standard of
care. (See also Akhlaghpour v. Orantes (2022) 86 Cal.App.5th
232, 251 [bankruptcy court order granting attorney fee
application for legal services provided by a client in bankruptcy
precluded client’s malpractice action arising out of the same legal
services because “[t]he malpractice claim, like the earlier claim
for fees, involves the acceptability of the legal services [the
attorney] provided to [the client] in connection with her
bankruptcy proceedings”]; Chavez v. Carter (1967)
256 Cal.App.2d 577, 583, disapproved on another ground in Neel,
supra, 6 Cal.3d at p. 190, fn. 29 [client’s malpractice action
against former attorney was barred by attorney’s prior fee action
with respect to damages that accrued prior to filing of attorney’s
12
action]; Black v. Dillon (1963) 213 Cal.App.2d 295, 295–296
[patient’s medical malpractice action against her physician
precluded his subsequent action against her for unpaid bills].)
Yaghobyan asserts “the issue of performance or non-
performance, which may give rise to a breach of contract, is
distinct and fundamentally different from the negligence of the
party’s performance, which may give rise to a tort.” Yaghobyan is
right in part: Contract and tort claims unquestionably arise out
of distinct legal theories and have different elements. The
relevant question for us, however, is not whether there are some
differences between Romero’s contract claims in the fee action
and Yaghobyan’s tort claims here, but rather whether any issues
“necessarily decided” in the prior action preclude Yaghobyan’s
present claims. As discussed above, they do.
Yaghobyan next contends that issue preclusion does not bar
the present action because she was dismissed from Romero’s first
fee action and thus was not a party to the judgment entered in
that case. While it is true that Yaghobyan was not named in the
March 2017 default judgment, that judgment was not the basis
for the trial court’s order granting the motion for judgment on the
pleadings. Instead, the order was based on the June 2018
judgment, in which Yaghobyan was named as a party, and which
therefore has preclusive effect as to her.
Yaghobyan also urges that issue preclusion does not bar
her claims arising out of “separate obligations that were not
raised in the pleadings and declarations where the default
judgment was entered in the prior matter.” Yaghobyan is correct
that issue preclusion bars only those claims that were “actually
litigated” in the fee action (Bridgeford v. Pacific Health Corp.,
supra, 202 Cal.App.4th at p. 1042; Akhlaghpour, supra,
13
86 Cal.App.5th at p. 250), but she has not identified any claim in
the present action that did not arise out of her 2013 retainer
agreement with Romero. Any such contention, therefore, is
forfeited. (See People v. Sorden, supra, 65 Cal.App.5th at p. 603;
Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784–785.)
Finally, Yaghobyan contends that issue preclusion does not
bar her present claims because her “breach of contract, fraud,
negligence and professional negligence [claims] are based on the
breach of [an] oral agreement.” Not so. As we have discussed,
each of these causes of action specifically asserts breaches of
Romero’s duties pursuant to a written retainer agreement
(sometimes referred to in the FAC as “agreement #2”). These
claims are precluded by the default judgment in the fee action,
and thus the trial court properly granted the motion for judgment
on the pleadings.
III. Yaghobyan’s additional claims lack merit.
Yaghobyan asserts a number of additional claims; none has
merit. She asserts, first, that the trial court erred in failing to
adjudicate the merits of her claim for “ineffective assistance of
counsel . . . under the Sixth Amendment of the United States
Constitution.” Yaghobyan has not alleged an ineffective
assistance of counsel claim, and in any event, the constitutionally
protected right to counsel “refer[s] specifically to criminal
prosecutions, and hence do[es] not apply to civil proceedings.”
(Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978–979, italics
added; see also Mendoza v. Superior Court (2021) 65 Cal.App.5th
988, 1002 [ineffective assistance of counsel doctrine “applies in
criminal, but not civil, cases”].) Accordingly, an ineffective
assistance of counsel claim was not available to Yaghobyan in the
present civil action.
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Second, Yaghobyan asserts that the trial court erred in
granting Romero’s request to have Yaghobyan declared a
vexatious litigant. Appellant’s opening brief contains no legal
citations in support of this assertion, and the appellate record
does not contain all of the filings that were before the trial court
when it ruled on the vexatious litigant motion. Accordingly, the
contention is forfeited. (E.g., Meridian Financial Services, Inc. v.
Phan (2021) 67 Cal.App.5th 657, 684 (Meridian) [“The reviewing
court is not required to develop the parties’ arguments or search
the record for supporting evidence and may instead treat
arguments that are not developed or supported by adequate
citations to the record as waived.”]; Oliveira v. Kiesler (2012)
206 Cal.App.4th 1349, 1362 [it is appellant’s burden to present an
adequate record for review; “ ‘The absence of a record concerning
what actually occurred at the trial precludes a determination
that the trial court [erred].’ ”].)
Third, Yaghobyan suggests that Romero’s fee action
against her should have been barred by the doctrine of issue
preclusion because it was identical to Romero’s earlier fee action
against her children. This contention is facially without merit,
but in any event it is not properly raised in the present action.
Challenges to the judgment entered in the fee action against her
had to be asserted in that action, and are not cognizable here.
(E.g., Meridian, supra, 67 Cal.App.5th at p. 702 [alleged errors in
a judgment generally are not subject to collateral attack in
subsequent action in which issue or claim preclusion are asserted
with respect to that judgment]; City and County of San Francisco
v. Stanley (1994) 24 Cal.App.4th 1724, 1728–1729 [paternity
judgment was res judicata in subsequent proceeding and could
not be collaterally attacked].)
15
Fourth, Yaghobyan contends in her appellant’s reply brief
that the trial court abused its discretion by refusing to allow her
to file a second amended complaint. Yaghobyan did not raise this
issue in her opening brief, and thus we will treat it as forfeited.
(See Christoff v. Union Pacific Railroad Co. (2005)
134 Cal.App.4th 118, 125 [“an appellant’s failure to discuss an
issue in its opening brief forfeits the issue on appeal”];
REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th
489, 500 [refusing to entertain an argument raised for the first
time in a reply brief].) In any event, even were we to consider the
issue on the merits, we cannot discern from appellant’s reply
brief what causes of action Yaghobyan wished to raise in a second
amended complaint.
Finally, Yaghobyan urges that the trial court demonstrated
ethnic bias against her by referring to her as an Armenian
mother. Yaghobyan has not supported this claim with admissible
evidence in the record, and thus we do not consider it on the
merits.
For all the foregoing reasons, the trial court properly
granted Romero’s motion for judgment on the pleadings.
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DISPOSITION
The judgment is affirmed. Romero and Romero Law, APC
are awarded their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
NGUYGEN (KIM), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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