NOT TO BE PUBLISHED
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
|RELIGIOUS TECHNOLOGY CENTER, a
California non-profit religious
corporation; CHURCH OF
a California non-profit
religious corporation; and
CHURCH OF SCIENTOLOGY OF
CALIFORNIA, A California
non-profit religious corporation.Plaintiffs and Appellants,v.JOSEPH A. YANNY, an individual,
and JOSEPH A. Yanny, a
professional Law Corporation.Defendants and Respondents.
(Super. Ct. No. C690211)
APPEAL from judgments of the Superior Court of Los Angeles County. Raymond Cardenas, Judge. Affirmed.
William T. Drescher, attorney for Plaintiffs and Appellants, Religious Technology Center; Eric M. Lieberman et al., attorneys for Plaintiffs and Appellants, Church of Scientology International.
Lewis, D’Amato, Brisbois & Bisgaard; David B. Parker, Jayesh Patel, Matthew D. Berger, Joseph A. Yanny, attorneys for Defendants and Respondents Joseph A Yanny, et al.
STANIFORTH, J., Dissenting:
The plaintiffs (appellants) are the Religious Technology Center (“RTC”)1 Church of Scientology of California (“CSC”), (collectively, Scientology) brought this action against their former attorney Joseph A. Yanny (Yanny)2 seeking a permanent injunction and damages. Yanny by cross-complaint sought payment for legal services rendered Scientology Churches. The trial commenced before a jury. Four weeks into the jury trial Scientology waived their damages claim, whereupon the trial was bifurcated. The jury was to determine the legal issues (Yanny’s cross-complaint) and the equitable issue (injunctive relief) was to be determined by the court. Scientology’s complaint against Yanny and members of his firm was for breach of fiduciary duty, breach of contract, tortious breach of the covenant of good faith and fair dealing, constructive fraud, fraud, intentional interference with contract, civil conspiracy and
1 RTC has been joined in this brief by the other two plaintiffs-appellants, Church of Scientology of California (“CSC”) and Church of Scientology International (“CSI”). RTC, CSC and CSI are collectively referred to hereafter as “Appellants” or “Scientology.”
2 Also named as defendants were several associates who had worked for Yanny during the relevant time, including Richard Wynne, Lisa Wilske, Mary Grieco, and Karen McRae, counsel to an individual, Vicki Aznaran.
conversion. Scientology charged, among other things, that Yanny was orchestrating a number of lawsuits against them. Yanny cross-complained for the legal fees owed him. After a 41-day trial (3 months) the jury awarded Yanny $154,000 damages as attorney fees owed. After hearing the equitable claims the trial court denied injunctive relief. Scientology appeals the adverse judgments.
Scientology contends Yanny and his counsel, Van Sickle, were guilty of deliberate pervasive misconduct so prejudicial as to require reversal; that the trial court failed to instruct as to willful suppression of evidence;
and there is a lack of substantial evidence to support the jury award to Yanny. Finally it is urged the trial court erred in refusing to enjoin Yanny from “continuing to aid litigation adversaries in substantially related matters” to his previous employment as attorney for Scientology.
Scientology’s complaint (filed June 1988, amended August 1988) charged Yanny and his professional corporation and associates with submitting false or inflated bills and thus breach of contract (second cause of action) and
engaged in fraud (fourth cause of action). Plaintiffs also charged Yanny, as well as Herzig & Yanny, with conversion based on their failure to return, among other items, the $150,000 retainer paid Yanny (ninth cause of action), and with fraud for having knowingly made false representations as to Yanny’s responsibility for papers served but not filed in a lawsuit in which Yanny represented RTC (sixth cause of action).3 On August 4, 1988, the court entered a preliminary injunction prohibiting Yanny, Wynne, and McRae from disclosing or encouraging the disclosure of confidences obtained during their attorney-client relationship with plaintiffs.4
In February 1989, Yanny, filed a cross-complaint against Scientology. Yanny charged Scientology had not paid a bill submitted in January 1988 for the period
3 The legal issues submitted in this appeal are no different to those briefed in Scientology’s second lawsuit against respondent Yanny. This was a later filed lawsuit, briefed before this particular appeal. Respondents request this court to take judicial notice of this case in the Second Appellate District, Division III, case No. B068261, an appeal from the judgment of a Superior Court of
California, County of Los Angeles, case No. BC033035.
4 This preliminary injunction was based upon the sworn testimony of two persons who were later, upon trial, found not worthy of belief.
October through December 1987 for legal services and expenses. He also asserted causes of action for breach of contract (first cause of action), for account stated (second cause of action), for work, labor and services (third cause of action), and for book account (fourth cause of action). In addition, Yanny alleged a cause of action for quantum merit for $10,500,000, on the ground that plaintiffs had purportedly been unjustly enriched by this sum. The reasonable value of the cross-claimants’ services were sought (fifth cause of action). Finally, Yanny claimed that plaintiff exploited him in breach of their covenant of good faith and fair dealing (sixth cause of action). Yanny’s plaintiff cross-complaint sought both compensatory and punitive damages.
We accept the trial court summary of the evidence relevant to the injunctive issues. These findings are supported by substantial evidence.
The trial court found:
“An attorney-client relationship existed between Yanny on the one hand and plaintiffs on another giving rise to certain fiduciary, contractual and ethical duties which Yanny continued to owe to plaintiffs after the attorney-client relationship terminated.”
“The evidence admitted at trial established that after plaintiffs and Yanny became involved in a dispute over attorney’s fees and also the $150,000.00 retainer [the jury found that the retainer was not refundable], plaintiffs’ agents Marty Rathbun and attorney Earle Cooley questioned Yanny’s integrity and reputation and attacked his motives by attempting to convince Vicki Aznaran not to
assist Yanny in any way. As provided in Case Law and the Evidence Code, such conduct by plaintiffs, acting through their agents, partially waived the attorney-client privilege which existed and allowed Yanny to act to protect his interest with respect to his legal reputation and his right to receive payment for legal services rendered in 1987-1988, and to establish his right to the $150,000.00 retainer. At the outset, therefore, plaintiffs waived their right that Yanny not breach the duty of confidentiality or loyalty with respect to matters and confidences that were relevant to the legal dispute between the parties. There was no waiver with respect to confidences unrelated to the dispute.
“The evidence admitted at trial with respect to Yanny established the following:
“(a) Yanny allowed his friends, the Aznarans and Karen McRae, to stay at his house for a period varying between one and two weeks in the latter part of March 1988;
“(b) Yanny discussed Scientology doctrines and listened as Vicki Aznaran (former president of RTC) and Richard Aznaran told of their mistreatment by plaintiffs while he (Yanny) was seeking evidence in support of his claims against plaintiffs. As for the alleged breach of confidences, there is insufficient evidence to prove that Yanny disclosed a client’s confidences or secrets. Much has been made about Yanny’s knowledge of Scientology’s litigation strategies and
weaknesses; however, there was insufficient proof that Yanny disclosed and then held secrets. The evidence disclosed that litigation strategies and weaknesses of plaintiffs were well known to Vicki Aznaran, former President of RTC. Moreover, it was evident (from the evidence) that ‘many members of the firm were aware of and familiar with the Wollersheim v. Scientology case which published those things that plaintiffs contend were secret litigation weakness and tactics.'”
“The court was asked to accept the often conflicting and highly impeached testimony of Dorothy Peti as it related to Yanny’s conversations with the Aznarans, McRae, Bent Corydon, Lisa Wilske and Mary Grieco at the Hermosa Beach gatherings in March 1988. The court finds that Dorothy Peti’s testimony lacked the credibility necessary to support a court’s finding that Yanny, Wynne and McRae individually or jointly violated duties owed to plaintiffs.”5
“Yanny inquired into the ethical questions raised by his possible representation of the Aznarans against plaintiffs, but concluded, for various reasons, that he would not represent the Aznarans. The evidence established that while Yanny may have indicated that he felt he could represent the Aznarans, he elected not to do so. Even if he had, such representation would not have necessarily resulted in a breach of Yanny’s ethical obligations, as adverse representation is permissible under certain conditions. (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564.)”
5 A dispassionate reading of the Dorothy Peti’s testimony points directly to the falsity of Scientology’s claims of Yanny “revealing” any “secrets” of Scientology. There is a strong suspicion that Peti was a “plant,” a spy on behalf of Scientology. She reported directly to the Scientology attorneys.
“Yanny assisted the Aznarans in their search for experienced counsel to represent them against plaintiffs.”
The court found that Yanny’s assistance in this regard including transporting the Aznarans to other attorneys’ offices did not constitute a breach of duties owed plaintiffs. There was insufficient evidence to establish that Yanny rendered legal assistance to any prospective attorneys.
The court concluded:
“Yanny was and is an aggressive attorney who is apparently driven by an all-consuming desire to right the wrongs that he believes plaintiffs have committed over the years with respect to him and others. It is this state of mind that blurs his objectivity and has caused Yanny to appear to lose sight of his continuing professional responsibility to the plaintiffs, his former clients–a duty of
confidentiality which he will bear so long as he is an attorney. Although Yanny’s conduct suggests a ready willingness to disregard legal and ethical responsibilities owed to his former clients, the fact is that plaintiffs failed to prove the allegations of the complaint and did not establish by the evidence the necessary prerequisites for the issuance of permanent injunction.”
Scientology’s “undisputed facts” were not accepted by the trial court. More than substantial evidence supports the trial court’s denial of injunctive
relief. A dispassionate reading of the reporter’s transcript cited by Scientology leads to these conclusions: (1) There was no evidence presented of Yanny entering into any representation of any person, any prospective adversary to Scientology; (2) There is a total lack of evidence that Yanny breached any particular or general fiduciary duties of confidentiality and loyalty owed to his former client.
Concerning the standard of appellate review of disqualification proceedings this court said in H.F. Ahmanson & Co. v. Salomon Brothers, Inc. & Co., supra, 229 Cal.App.3d 1445 at p. 1451: “In our review of disqualification motions, as elsewhere, the judgment of the lower court is presumed correct and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Centinela Hospital Ass. v. City of Inglewood (1990) 225 Cal.App.3d 1586.) Conflicts in the declarations are resolved in favor of the prevailing party and the trial court’s resolution of factual issues arising from competing declarations is conclusive on the reviewing court. [Citations.]”
See also In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561-562; In re Complex Asbestos Litigation, 232 Cal.App.3d 572, 667, 671; Higdon v. Superior Court, 227 Cal.App.3d 1667, 1671.
This court in H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d 1445, 1451 stated: “It is beyond dispute a court may disqualify an attorney from representing a client with interests adverse of a former client. (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574; Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 298.) In re Marriage of Zimmerman, supra, 16 Cal.App.4th 556, 562-563, disqualifica- tion in cases of successive representation is based on the prohibition against ’employment adverse to a . . . former client where, by reason of the representation of the . . . former client, the [attorney] has obtained confidential information material to the employment . . . .'” (Rule 3-310, Rules Prof. Conduct [23 West’s Ann. Civ. & Crim. court Rules, pt. 2 (1990 Supp.) p. 445; Deering’s Ann. Rules of Court (1991 pocket pt.) p. 19].)
Scientology cites a host of cases holding the fiduciary duties of an attorney include the obligation to refrain from aiding parties with interests adverse to the interests of the attorney’s former clients in matters
which are substantially related to matters the attorney handled in representing the former clients. (See, e.g., People ex rel. Deukmejian v. Brown, 41 Cal.3d 150, 156-57; Western Continental Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, 758-60; In re Jessica B. (1989) 207 Cal.App.3d 504, 511-12; River West, Inc. v. Nickel, supra, 188 Cal.App.3d 1297, 1302-04; Elliott v. McFarland Unified School District (1985) 165 Cal.App.3d 562, 568-70; Civil Service Commission v. Superior Court (1984) 163 Cal.App.3d 70, 79-81; Dill v. Superior Court (1984) 158 Cal.App.3d 301, 304-305; Woods v. Superior Court (1983) 149 Cal.App.3d 931, 934-35.)
None of these cases are in point. There is no evidence whatsoever that Yanny represents any former client with an interest adversed to those of Scientology. This rule therefore has no application here. The evidence is without contradiction, Yanny determined after examination and consideration not to represent any prospective client in a suit against Scientology. Nor is there any evidence of any threat to represent anyone in an unspecified future litigation against Scientology.
The rule against disclosure of confidential information extends beyond representing a client in an action against a former client. “He may not do anything which will injuriously affect his former client in any manner . . . nor may he at any time use against his former clients knowledge of information acquired by virtue of the previous relationship.” (Wutchumna Water Co. v. Bailey, supra, 216 Cal. 564, 573-574; Grove v. Grove Valve & Regulator Co. (1963) 213 Cal.App.2d 646, 650-651; Marriage of Zimmerman, supra 16 Cal.App.4th 556, 562 and cases cited therein.)
No evidence was presented to the trial court to suggest that Yanny was revealing “secrets learned in representing Scientology” to anyone. The record is bare of facts to support application of the broader rules cited above. Scientology recognizes its difficult factual problem, admitting:
“In this case, an entirely different–and unique — circumstance was presented. Yanny had not made an appearance as counsel of record in any of the actions in which he was aiding adverse litigants. Instead, all of his efforts were made behind the scenes, hidden from the Churches. This placed the Churches in an extremely difficult and unenviable position. Obtaining Yanny’s
disqualification in each of a series of cases while he was disclaiming any role, would have been virtually impossible. First, it is unclear whether a court would have jurisdiction to disqualify an attorney who has made no appearance and denies playing any role in the litigation. Second, proof of Yanny’s involvement on a case-by-case basis would, practically speaking, have been impossible. Disqualification orders, moreover, would have been largely useless in any case since by the time the Churches discovered his involvement in a case and moved to disqualify the damage would already have been done. [¶] The Churches’ only hope for obtaining effective relief was thus to seek general injunctive relief ordering a halt to his improper conduct precisely what the Churches did here.”
In Scientology’s attempt to get evidence of Yanny’s disclosure of secrets, Scientology relied upon witnesses Dorothy Cota and Thomas Vallier. Cota reported to Scientology attorneys her attendance of meetings where Scientology claims “secrets” were disclosed. An examination of her testimony shows no support for Scientology’s factual contention. The trial court found her testimony “highly impeached” and “lacked credibility.” The second witness offering testimony to “secrets” disclosed was Thomas Vallier. The trial court found Vallier’s testimony “not credible, not supported by other evidence.”
A former client’s claim of attorney disloyalty, absent any proof of disclosure of confidences, is not actionable. Scientology does not cite a single case to support its legal factual position. Scientology’s reliance on disqualification cases do not give life to their cause of action here. As stated in a leading national treatise on attorney malpractice, 1 Mallen & Mith, Legal Malpractice (3d Ed.) at page 804:
“There must be an actual fiduciary breach which caused real damages. Thus, the ‘substantial relationship’ between subject matters of representation must be reality and involve actual adversity. A cause of action is not established by showing that the attorney had access to confidential information or that the representation was adverse. The former client must establish not only that the attorney possessed and misused the client’s confidences but also that the fiduciary breach was a proximate cause of injury. (See Stockton Theaters Inc. v. Palermo (1953) 121 Cal.App.2d 616.)
Scientology was required to prove its claim factually before either injunction or damage relief could be awarded. In these critical requirements Scientology has abjectly failed.
The trial court held it “lacks jurisdiction” to limit the practice of law other than on a case by case basis. The trial judge stated:
“Although the evidence established no breach by defendants the court further declines to issue an injunction against Yanny and Wynne (California Lawyers) because the Supreme Court of California is the only State Court which can regulate the general practice of law and is the only body which can discipline or disbar attorneys (Jacobs v. State Bar (1977) 20 Cal.3d 191, Business and
Professions Code 6100). It belabors the obvious to state that this court cannot regulate the practice of law in any federal court.
“No case previously cited by plaintiffs supports the position that this court can prospectively limit the ability of two attorneys in the instant action to practice law.”
Scientology has yet to tender such a case. The judge’s decision is in complete conformity with binding California authorities. It could not enjoin Yanny and associates from the practice of law.
In re Complex Asbestos Litigation, supra, 232 Cal.App.3d 572, 600-601, the appeal court set forth the “jurisdiction limits” on the power to disqualify counsel stating at pp. 600-601:
“The power to disqualify an attorney, as we stated above, derives from the court’s inherent power to control the conduct of persons ‘in any manner connected with a judicial proceeding before it in every matter pertaining thereto.’ (Code Civ. Proc., § 128, subd. (a)(5); [citation].) This does not mean that a superior court has any inherent or statutory power to control the conduct of persons in judicial proceedings pending before a different superior court. One court may not interfere with the process of another court of equal jurisdiction in a case properly before the latter. [Citations.]”
The trial court’s negation of any right or authority to disqualify counsel as to and future representation was correct law yet the rule has no application here. No representation of an adverse party has been shown or threatened.
Scientology next contends the misconduct of Yanny and his counsel throughout the trial was deliberate and pervasive and so prejudicial as to compel reversal. When such a charge is made we examine the contention in the light of these basic principles. In Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 210-211, this court quoted the here relevant statements of the California Supreme Court in Tingley v. Times Mirror (1907) 151 Cal. 1, 23:
“As the [California] Supreme Court noted nearly eighty years ago ‘[i]t rarely occurs in any case which is of moment and sharply contested that counsel on both sides in their zeal and partisan devotion to their clients do not indulge in arguments, remarks, insinuations, or suggestions which find neither support in, nor are referable or applicable to the testimony, or warranted by any fair theory upon which the case is being presented. If such impropriety of counsel always afforded ground for a new trial, there would be little prospects of any litigation becoming finally determined. It is only when the conduct of counsel consists of a willful or persistent effort to place before a jury clearly incompetent evidence, or the statement or remarks of counsel are of such a character as to manifest a design on his part to awake the resentment of the jury, to excite their prejudices or passion against the opposite party, or to enlist their sympathies in favor of his client or against the causes of his adversary, and the instructions of the court to the jury to disregard such offered evidence or objectionable remarks of course could not serve to remove the effect or cure the evil, that prejudicial error is committed. It is only extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such
matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have. (Tingley v. Times Mirror (1907) 151 Cal. 1, 23.)'” In Menasco v. Snyder (1984) 157 Cal.App.3d 729, 732 the appellate court said:
“In assessing that prejudice, each case ultimately must rest upon this court’s view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge’s control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. (See also Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d
Finally, and applicable to the facts here, the Menasco court stated at page 733:
“A claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.”
Because the effect of misconduct can ordinarily be removed by an instruction to the jury to disregard it, it is generally essential in order that an act of misconduct be subject to review on appeal, that it be called to the attention of the trial court at the time to give the court an opportunity to so act if possible as to correct the error and avoid a mistrial. Only misconduct so prejudicial that as admonishment would be ineffective excuses the failure to request such admonishment. (Whitfield v. Roth, 10 Cal.3d 874, 892.) (Emphasis mine.)
The list of purported misconduct is attached as an additional “appendix” to Scientology’s Opening Brief. In thirty-seven of those listed instances of purported misconduct, Scientology made no objection at all.6
Twenty-two of the Scientology objections listed in the “appendix” were specifically overruled by the trial court.7 More significantly, twenty-seven of those instances cited in Scientology’s “appendix” took place during the examination of Yanny, when he was on the stand. He had been specifically excluded by the trial court from participating in side bar conferences. Yanny had no way of knowing the substance of the trial court’s decision at side-bar during his examination and the limits it might have imposed on his testimony.
6 The following is a partial list: Reporters Transcript: 362-63, 365, 382-83, 589-90, 1123, 1125, 1202, 1223, 1319-20, 1725-26, 1795-96, 1931, 2008-09, 2105-06, 2107-08, 2246-47, 2257, 2484, 2568-69, 2707, 2856, 2861-62, 2929, 2931-32, 2969-70, 273-74, 2976-77, 2981, 2996-97, 3006-07. These examples were taken from Scientology’s “appendix.”
7 The following is a partial list: Reporters transcript: 436, 438-39, 591, 924-25, 967-68, 989, 1120-21, 1208, 1235-36, 1313-14, 1777-78, 1779-80, 1924-25, 1984-85, 2011-12, 2107, 2149-50, 2154-55,
2199-2201, 2993. These examples were taken from Scientology’s “appendix” of purported misconduct.
When objections were sustained, during the over one-and-a-half month jury trial, the trial court followed, when necessary, with an admonition that sought to clarify that matters being discussed were allegations, rather than facts.
A fair and dispassionate reading of the record does not support Scientology’s charge. This was a hard fought lawsuit. Scientology at long last concedes the trial was “hotly contested”. In this legal “hardball” Scientology gave a great many more causes to complain than did Yanny’s counsel. The tone and flavor of Scientology counsel’s conduct (Cooley) appears in the opening statement and continues into his final argument. In his opening statement Cooley represented he would prove:
“Approximately 40 to 60 percent of the $2,300,000 represented fraudulent billing [by Yanny].
“There are basically two parts to this case, the betraying of client confidences, the aiding, counseling and assisting of adversaries. That’s one side. And the other, the fraudulent billing.
“These three entities come before you not to present any form of ecclesiastical dispute, but they come before you as clients of a lawyer. They come before you presenting to
you a claim that their lawyer to whom they paid $2,300,000 has betrayed them and gouged them, and they ask you to focus your attention—
“MR. SAYERS: Your Honor, I’m going to object to this is argument and I’d ask that the jury be instructed to disregard these comments.
“THE COURT: I’ll ask the jury to disregard it.”
Cooley continued his not to be factually supported diatribe:
“The evidence will show that he has become the field general for the main litigation involving adversaries of the church, these three entities. . . .”
Counsel’s statements of evidence to be offered should be presented in good faith. Many of Cooley’s statements were totally unsupported by evidence produced at trial. Scientology witnesses gratuitously volunteered unsupported statements of Yanny’s marital infidelities.
“Q. Do you recall what Mr. Yanny said with respect to Ms. Aznaran’s relationship to that retainer?
“A. He said he owed everything to Vicki Aznaran, and that if it weren’t for Scientology ethics he would like to sleep with her.
“MR. SAYERS: Objection. Move to strike. That’s irrelevant and highly prejudicial.
“THE COURT: Overruled. Motion to strike denied.
[SCIENTOLOGY ATTORNEY]: This is a further example.
“MR. DRESCHER: Your Honor, I’d object to Mr. Yanny’s gratuitous remark and ask that it be stricken.
“THE COURT: Overruled. The jury is asked to disregard any comment made by the lawyer.
“THE WITNESS: I don’t think it’s proper to sleep with a law clerk in your office a month after you’ve married your wife and she’s working in the office.” (Emphasis mine.)
These gratuitous, irrelevant factually unsupported statements continued into the final argument [by Cooley] when he said:
“Good morning. [¶] Mr. Van Sickle’s final argument was based, I think, upon a technique more appropriate to a propaganda ministry than to a courtroom. His strategy obviously was to equate things that, in fact, are irrelevant to each other, and then to lump the entire story into a great big generality which he gave his own theological spin by repeating to you over and over again.
“So what. So What. Big deal. Word games. “So what that Yanny ripped plaintiffs off for thousands upon thousands of dollars. Nobody’s perfect.
“So what that neither of the defendants’ only two witnesses, Yanny and Vicki Aznaran, could get their story straight, even when they spent the night together before one of them testified.
“So what that the fictitious documents that Yanny claims support his position never even existed.
“So what that Yanny dreamed up a nonexistent agreement, one-page agreement written by a dead man which Mr. Van Sickle now wants you to ignore.
“So what that Yanny claims to have cut the deal for the $150,000 retainer at a meeting that never happened in a restaurant Vicki Aznaran never visited with people who were never there.
“The so what is that a witness, and particularly a lawyer, who is supposed to honor and serve the judicial process, has a sacred duty not to give false testimony and not to procure false testimony from that witness stand, and to treat his clients with honesty and fairness and not to take advantage of their trust in him by defrauding them.
“As part of his effort to reduce Yanny’s enormous wrongdoing to a so what or big deal status, Mr. Van Sickle characterizes specific items that have been proven as part of the overall fraud, which even by his calculations come to $50,000, that’s pocket change, and nickels and dimes not worthy of your consideration.
“Mr. Van Sickle, thus announces a new rule; the law according to Yanny. It’s okay to steal $50,000 because it’s not really a lot of money to these plaintiffs. I say to you, it is a lot of money. Furthermore, it’s solid
evidence of the overall fraud that Yanny had in his heart and it defines what Yanny is, and serves as one of the many building blocks on which we ask you to base the overall case of fraud, treachery and deceit.
“According to Mr. Van Sickle, all of the witnesses against Yanny are blind and cannot see the elephant. Jacobs is blind, Grabowski is blind, Todd Serota’s blind, Warren McShane, Paul Schroer, Doreen Hackett, Eva Raber, Tom Vallier, Marty Rathbun and Dorothy Peti, all blind. None of them can see the elephants, according to Mr. Van Sickle. They feel the tail and think it’s a rope and want to hang Yanny with it.
“I would suggest to you that there are so many people who have testified here to fundamentally the same thing that they have correctly identified not only the tail but the trunk, tusk, head, ears, body, and that the elephant has taken shape, and has trampled Yanny’s thick of lies.”
Neither the judge nor the jury accepted these statements as fact as demonstrated by the jury verdict in favor of Yanny and the court’s decision denying injunctive relief to Scientology.
In many instances, Scientology induced the commission of the conduct now claimed to be Yanny’s misconduct. In such case Scientology is estopped from asserting any induced, alleged, misconduct as a ground for reversal. (9 B.E. Witkin, California Procedure: Appeal § 301 et seq. [3d Ed., 1985, Supp. 1992].) One of the major
issues of purported misconduct cited by Scientology, was Yanny’s reference to the Wollersheim verdict. This verdict was in evidence, having been introduced by Scientology itself as Exhibit 61. This is invited error or waiver.
(Gunch v. Fieg (1913) 164 Cal. 429, 3) Finally, regardless of whether the trial court overruled or sustained the objections, over seventy instances of purported misconduct cited by Scientology are based on objections where there is no certification of the grounds for objecting whether as to the form or the substance of the question. These various examples cited by Scientology, do not meet the standard to constitute lawyer misconduct. There is no basis for reversal shown in this record.
Scientology next contends the trial court’s failure to instruct the jury as to willful suppression of evidence is reversible error. Two issues are raised. Was the refusal erroneous, and if error, prejudicial?
Scientology has the burden of proof on both issues. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) The court in place of the requested instruction gave a broader alternate instruction as follows:
“If weaker or less satisfactory evidence is offered by a party when it was within his power to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.
“In determining what inferences to draw from the evidence, you may consider, among other things, a party’s failure to explain or to deny such evidence.”
A litigant is entitled to instructions on every theory advanced by him which finds support in the evidence. (Phillips v. G. L. Truman Excavation Co. (1961) 55 cal.2d 801, 806; Daniels v. City of County of San Francisco (1953) 40 Cal.2d 614, 623.) But the precise instruction requested is not required in every instance. The instruction actually given had not only covered Scientology’s theory of willful suppression but also covered other theories favorable to Scientology. Scientology’s theory was adequately covered by the instruction given. (See Williams v. Carl Karcher Enterprises Inc. (1986) 182 Cal.App.3d 479, 487.) If it be assumed that the broader instruction given was not sufficient yet no prejudice is shown. The evidence was in conflict as to what was contained in the non produced documents. The jury chose to believe Yanny’s witnesses. There was no evidence of Yanny’s willful suppression of any documents.
Scientology contends that the jury verdict on the cross-complaint is not supported by substantial evidence.
Scientology’s quarrel is with the substantial evidence rule:
“It is fundamental that the trial court’s [or jury’s] factual findings will be reversed on appeal only when they are not supported by substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Stevens v. Parke, Davis & Co (1975) 9 Cal.3d 51, 64.) In applying the substantial evidence test, the court views the evidence in the light most favorable to respondent (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920), accepting as true respondent’s evidence resolving all conflicts in respondent’s favor, and drawing such favorable inferences as may be drawn from the evidence. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544.)”
We may quickly dispose of Scientology’s claims that the evidence was insufficient to support the judgment. We do not reweigh the evidence on appeal, but rather determine after resolving all conflicts favorable to the prevailing party whether there is substantial evidence. We find here there is substantial believable evidence of Yanny’s contract to perform legal services for Scientology and there is evidence of his performance of the contract and Scientology’s breach. Scientology refused to pay for services rendered to Yanny’s damages. Yanny was
hired by RTC president Vicki Aznaran. He was retained at a non-refundable $150,000 retainer. The contract was admitted. The Scientology’s witness McShane admits the final bill submitted by Yanny was unpaid. The services rendered by Yanny were complex and extensive in nature. It was only after Yanny expressed his disagreement with certain Scientology practices and policies did Scientology question any bills submitted. There is more than substantial evidence to support the jury verdict and the trial court’s denial of injunctive relief. Each must be affirmed.
DISPOSITION IN RE SANCTIONS
This is a case that warrants the imposition of sanctions upon Scientology under Code of Civil Procedure section 907 as well as upon Scientology’s attorney William T. Drescher and Eric M. Lieberman. Respondents Mary Grieco and Richard Wynne have been sued without cause, put to the expense of a three month trial and to this lengthy appeal.
On this appeal Scientology does not even mention Mary Grieco. Richard Wynne is mentioned only once in a footnote in an unrelated matter.
After 41 days of trial–three months out of the life of Yanny, Grieco, Wynne and McRae, Scientology
produced an enormous amount of time consuming legal froth–no substance, no lawful basis, for any relief. Scientology witnesses swore under penalty of perjury to “facts” that formed the basis of the issuance of the temporary restraining order here in the injunction. When tested in open court these witnesses were found not worthy of belief. There is a strong suspicion that one of these witnesses, Dorothy Cole, was a plant, a spy placed by Scientology in Yanny’s employ. The declarations under oath by Yanny, Grieco and Wynne support the conclusion that a series of illegal pressures were sought to be placed on these parties; that an attempt at subordination of perjury was made. A review of this record as a whole leads to this conclusion. This appeal court and the trial court below was used as a means in Scientology’s pursuit of the “fair game,” policy of punishing those who leave Scientology without Scientology’s approval. This appears to be a continuation of the fair games procedure of Scientology to discredit and to destroy and ruin an adversary by whatever means available. (See Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1067; Wollershein v. Church of Scientology of Calif., supra, 212 Cal.App.3d 872, 888, 891-895; Allard v. Church of Scientology of Calif. (1976)
58 Cal.App.3d 439, 444.) The prime issue in this trial was credibility. Scientology witnesses totally failed to establish the requisite facts necessary to judgments in their favor. The evidence of the “fair game policy” and its application was relevant. Scientology failed to adequately designate the record on appeal (Cal. Rules of Court, § 5.1). Scientology does not give this court the necessary record in order to determine their contentions of error in the jury verdict. This neglect prevents this court to reach the merits of the issues raised. Neither Scientology nor its lawyers offer any justification for the prosecution of this appeal against Mary A. Greco or Richard Wynne. There is no legal or factual basis to find any error in the judgments in favor of these individuals.
Scientology at long last concedes (as is apparent from the face of the record) that the trial was “hotly contested.” The record and the jury verdict and court decision reflect a rejection of the unsupported slanderous statements and legal deficiencies of Scientology’s positions taken.
Scientology and counsel have failed to respond to or refute misleading arguments made on this appeal. (See fns. 7 and 8, supra.) The same issues and arguments presented on this appeal were made–unsuccessfully–before Division Three of this court in case No. B068216 (see fn. 3, supra). Scientology and counsel have urged on this appellate court law having no relevancy whatsoever. This case does not involve a lawyer representation of a client against a former client after termination of that attorney client relationship. Further, the law relevant to a “breach of loyalty” absent facts to show a disclosure of confidence has no application whatsoever. Three times Scientology and its lawyers have pushed these inapposite legal arguments without success. The high point in evidence offered was rejected by the trial court as not worthy of belief. This was an appeal on unproved–rejected as false–facts. This appeal and its delays and total lack of merit must be viewed in conjunction with the other groundless similar lawsuit pursued against Yanny. Such evidence leads to the conclusion that this proceeding was a device for destroying Yanny and any lawyers who chose to work with him. This appeal is the “Fair Game” of Scientology infamy at work.
This appeal has been delayed unreasonably due to Scientology’s failure to perform requisite acts to perfect an appeal. There were violations of numerous rules of court. The notice of appeal was filed April 23, 1991 and designation of the reporters record made on May 9, 1991. It was not until September of 1992 that Scientology paid the estimated costs of completing the reporters transcript. Failure to do so for over one year caused this court to make its own motion to dismiss. Numerous other delaying tactics appear in this record.
THE LAW IN RE SANCTIONS ON APPEAL
Code of Civil Procedure section 907 provides:
“When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” (See also Rule 26(a).)
An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the burdensome volume of work at the appellate courts. An
appeal should be held to be frivolous only when, as here, it is prosecuted for an improper motive–to harass the respondent or delay the effect of an adverse judgment–or where it indisputably has no merit–when any reasonable attorney would agree that the appeal is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Pursuant to rule 26(a), this court may impose upon offending attorneys or parties such penalties “as the circumstances of the case and the discouragement of like conduct in the future may require.” (Italics added.) Preliminarily, I note that because of due process considerations, “Penalties for prosecuting frivolous appeals should not be imposed without giving fair warning, affording the attorney an opportunity to respond to the charge, and holding a hearing. Further, when imposing sanctions, the court should provide the attorney with a written statement of the reasons for the penalty.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654.) These due process requirements have been more than met here. It is pointed out in Bank of California v. Varikin, 216 Cal.App.3d 1630, 1636, respondents are:
“. . . [N]ot the only parties damaged when an appellant pursues a frivolous claim. Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court’s attention. (Martineau, Frivolous Appeals: The Uncertain Federal Response (1984) Duke L.J. 845, 848 & fn. 18.) In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court’s time and resources. (See generally Bennett v. Unger (1969) 272 Cal.App.2d 202, 211; cf. Cann, Frivolous Lawsuits–The Lawyer’s Duty to Say ‘No’ (1981) 52 U.Colo. L.Rev. 367, 368-369 [discussing the social cost of frivolous appeals].) Accordingly, an appropriate measure of sanctions should also compensate the government for its expense in processing, reviewing and deciding a frivolous appeal. (Bennett v. Unger, supra, 272 Cal.App.2d at p. 211; Eisenberg, [Sanctions on Appeal: A Survey and a Proposal for Computation Guidelines (1985)] 20 U.S.F. L.Rev. ; Young v. Rosanthal, 212 Cal.App.3d 96, 133.)”
In Young v. Rosenthal, supra, at page 134, the court held:
“In determining the appropriate relief, the underlying policy of Code of Civil Procedure section 907 should control. ‘The object of imposing a penalty for frivolous appeal is twofold–to discourage the same, as well as to compensate to some extent for the loss which results from the delay. . . . [¶] In determining the amount . . . in this case for a frivolous appeal we should consider the facts with relation thereto and the effect of the delay.’ (Huber v. Shedoudy (1919) 180 Cal. 311, 316-317; see also Kim v. Walker (1989) 208 Cal.3d 375, 384-385.)”
“In this case, such sanctions are most properly measured by the reasonable attorneys’ fees incurred by CEH in responding to Rosenthal’s appeals.”
Review of the record and briefs filed including specific declarations as to time spent and applicable hourly rates, I conclude the amount of attorneys fees reasonably incurred in defense of this appeal by Yanny, Greco and Wynne, is the sum of $63,387.50 plus costs involved of $14,441.60 or a total of $77,829.10.
SANCTIONS PAYABLE TO THE COURT
The handling of this case has imposed a lengthy and arduous burden upon the court. Numerous briefs, procedural motions precedes the oral argument in this case. I place the fault for imposing this burden on the legal system upon Scientology and counsel. This was a time-consuming, costly and frivolous appeal. The taxpayers of the state have been harmed by a wasteful diversion of their appellate court limited resources. The appropriate measure of sanctions should compensate the State of California for its processing, reviewing and deciding this frivolous appeal.
This court is aware of the normal average cost of handling
an appeal in this Second District of the Court of Appeal (see Young v. Rosenthal, supra, 212 Cal.App.3d at pp. 136-137), but I am also painfully aware that that is not an average case. I conclude the cost incurred by the State of California due to this frivolous appeal is the sum of $25,000. Appellant Religious Technology Center, a California non-profit religious corporation; Church of Scientology International, a California non-profit religious corporation; and Church of Scientology of California, A California non-profit religious corporation and their attorneys William T. Drescher and Eric M. Lieberman are jointly and severally liable to Joseph A. Yanny and Mary A. Greco and Richard Wynne for the total sum of $77,829.10. Appellants and named attorneys should be directed to pay the further sum, as a joint and several obligation, of $25,000 to the clerk of the court as a further sanction.
The judgment is affirmed in all respects. Costs on appeal are awarded to respondents.
NOT TO BE PUBLISHED.
*Assigned by the Chairperson of the Judicial Council.
LILLIE, P.J. and JOHNSON, J., Concurring and Dissenting:
We concur in Parts I – IX of our colleague’s opinion but depart from him on the issue of appellate sanctions (Parts X – XII). We do not find the issues on appeal to be so devoid of merit as to qualify as frivolous under the standard enunciated in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650. Nor do we find sufficient evidence independent of the relative merit of the issues raised on appeal to conclude the appeal was “taken solely for delay.” (Code Civ. Proc., § 907.)
Accordingly, we are unwilling to impose monetary sanctions on appeal either in favor of the court or of respondents.
As a result of our decision on this issue, the disposition of this case does not include any direction to appellants or their attorneys to pay respondents the monetary sanctions on appeal discussed in our colleague’s opinion or to pay monetary sanctions to the State of California. However, we do deem it appropriate to require appellants to pay respondents’ costs on appeal. Thus, the disposition of this appeal is as set forth in the paragraph below.
The judgment is affirmed. Costs on appeal are awarded to respondents.
NOT TO BE PUBLISHED.