Brocket v. Moore

• Decision Date: 20 February 2003
• Docket Number: No. C038317.,C038317.
• Court: California Court of Appeals Court of Appeals
• Parties: Mark BROCKET, et al., Plaintiffs and Respondents, v. Walter MOORE, Defendant and Appellant.

131 Cal.Rptr.2d 746

107 Cal.App.4th 86

Mark BROCKET, et al., Plaintiffs and Respondents, v. Walter MOORE, Defendant and Appellant.

No. C038317.

Court of Appeal, Third District.

February 20, 2003.

Farmer, Murphy, Smith & Alliston, George E. Murphy and Suzanne M. Nicholson, Sacramento, for Defendant and Appellant.

Gary W. Rhoades, Danielle Jones; Cibula and Cibula, Mark Cibula; Heather Cibula and John Gianola, Redding, for Plaintiffs and Respondents.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Herschel T. Elkins, Senior Assistant Attorney General, Ronald A. Reiter and Robyn C. Smith, Deputy Attorneys General, as Amicus Curiae on behalf of Plaintiffs and Respondents.

MORRISON, J.

In adopting the Unlawful Detainer Assistants Act (Bus. & Prof.Code, § 6400 et seq.; UDAA) the Legislature found in part that "there currently exist numerous unscrupulous individuals . . . who purport to offer protection to tenants from eviction. The[y] . . . represent themselves as legitimate tenants' rights associations, legal consultants, professional legal assistants, paralegals, attorneys, or typing services . . . . The acts of these unscrupulous individuals . . . are particularly despicable in that they target low-income and non-English-speaking Californians as victims for their fraudulent practices." (Stats. 1993, ch. 1011, § 1, pp. 5721-5722.)

Under names such as "Legal Aid" and "Legal Aid Services" defendant Walter Moore operates a business which purports to offer typing services, particularly in eviction cases. Victims of Moore's deception (Mark Brockey, Dawn Gayler, Fred Pavloff and Frank Word, collectively Brockey) were eventually directed to Legal Services of Northern California's Redding office and obtained representation in the underlying cases and in this action seeking monetary and injunctive relief.

A jury found Moore practiced law in violation of the State Bar Act (Bus. & Prof.Code, § 6125, SBA), violated the UDAA and the Consumer Legal Remedies Act (Civ.Code, § 1750 et seq., CRA) and awarded damages of $150 to each of the four plaintiffs. The jury found Moore acted with oppression and malice, but declined to award punitive damages. The trial court issued a judgment on the jury verdicts and a permanent injunction under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq., UCL), detailed below. Moore timely filed a notice of appeal. We shall affirm.

BACKGROUND

"Under the often-enunciated rule, which is so often forgotten in the enthusiasm of advocacy, we look to the evidence accepted by the [fact-finder]." (Findleton v. Taylor (1962) 208 Cal.App.2d 651, 652, 25 Cal. Rptr. 439; see Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157.)

Plaintiffs lived in a mobile home park in French Gulch, Shasta County, and in April 1998 they received unlawful detainer summonses they wanted to fight. None had the means to hire a lawyer and they tried to obtain free legal help.

The Judicial Council form summons for unlawful detainer actions states the recipient has five days to file a response and "If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book)."

The Judicial Council information sheet on waiver of court costs states "If you have any questions and cannot afford an attorney, you may wish to consult the legal aid office, legal services office, or lawyer referral service in your county (listed in the yellow pages under `Attorneys')."

Brockey (who lived with Gayler) looked in his local telephone directory under "Legal Aid" (as instructed on the Judicial Council form) and found a local number which he called. That number was forwarded to Moore's Modesto business. "Jay" told Brockey he had to wire money, which Gayler did because she was able to drive to town to arrange the wire and faxes. Brockey did not tell "Jay" which boxes to check, that he wanted each party to bear its own fees, or that he wanted to raise an affirmative defense by talking to the judge at the time of trial. Gayler thought they had contacted a law office "that offered services to low income people, [maybe] on a sliding scale of some sort." She called the number on the instructions to clarify them and Moore read the directions to her, rudely ignoring her inquiries. When they filed the papers, the court clerk directed them to the local Legal Services of Northern California (LSNC) office.

Plaintiff Pavloff called "411" information to get the number for free "Legal Aid Services," which he had used before, and was given Moore's number by the operator. He was told to wire $85, which he did. He did not tell "Jay" how to fill out the forms. When he received them he was still unsure what to do so he went to his local LSNC office, and "that was the first time that I knew that this [meaning, Moore's business] wasn't the Legal Aid office that I thought it would be." Plaintiff Word testified to a similar series of events, thinking that "Legal Aid" was a government agency.

The form answers Moore provided to the plaintiffs each have the general denial box checked and add the following purported affirmative defense: "Will discuss with the judge at the time of trial." Each requests that "both [parties] pay their own legal fees." "Parties" is spelled "parteis" on each form.

The plaintiffs had to sign an "agreement & disclosure" form for the "Legal Aid Services Processing Center" in Modesto after paying money but before receiving their answers. The form states that "[t]his office is a professional document preparation and typing service only," that it is not a law office and "will not provide any legal advice." It suggests clients contact an attorney. The forms themselves show that they are sent after payment of money, as each reflects a zero account balance. For example, plaintiff Gayler's form states "Client's deposit is $85.00 with a balance due of $0 for a total of $85.00."

Claudia Nakamura, not a plaintiff herein, testified to a similar set of facts occurring in April 1999. She faced an eviction in Salinas. She thought she was calling the entity which had helped her for free in the past, "the people that help people that don't have the money to pay a regular lawyer." When she asked why she was being charged she was told it was just for the paperwork. She did not see the agreement until after she paid. She did not tell the company how to fill out the form she later received. She was told to attach her own handwritten statement to the answer, but the business did not offer to type it for her.

Donna Williams, not a plaintiff herein, also testified to a similar set of facts, except that she did not send money after her "local" telephone call, but instead went to the local LSNC office. She called "Legal Aid" "Because I've always known Legal Aid to be someone — somebody that helps people that are low income."

Michele Logan, not a plaintiff herein, needed an annulment in December 1999, and called Moore's business, thinking it was "a low income agency" after finding the number under "Legal Aid" in the Modesto telephone directory. After she spent $200 and received the agreement form stating no legal advice was being provided, she felt she had no choice but to sign and return the agreement because it stated her documents were ready and "they cashed the check." When she tried to file the legal papers she was sent, the court clerk told her they were incomplete because she needed service paperwork. She called "Jeff to complain and he offered to arrange for service by publication for her and said he was an attorney. Logan never received the promised additional paperwork.

Velda Crotty, not a plaintiff herein, wanted help with a grandparent visitation issue and in June 1999 called a local "Legal Aid" number in her Redding telephone book. The man who answered listened to her problem and told her to complete some papers and send them back with $200, that it was a "formahty" and in about 30 days it would be finished "and I probably wouldn't even have to go to court." A couple of weeks later she received some forms and a statement that no legal services were provided and she called to inquire. A woman angrily told her that the company was only a typing service.

Donna Pritchard, not a plaintiff herein, needed help with a bankruptcy and had used the real legal aid in the past. She found "Legal Aid" in the Redding telephone directory, called the local number and spoke with a woman who had answered the telephone "Legal Aid." After paying $125, she received incorrect papers and ultimately got in touch with LSNC.

Moore's former employee Michael Isaac testified he was told not to tell callers where the company was, to use aliases, and not to refer callers to the "real" legal aid. Isaac referred to Moore as "Jay" at trial. When Isaac worked there in the fall of 1998, the company received from 60 to 200 calls per day. Isaac was a poor typist and was hired to answer the telephone.

Part of the deposition of Moore's former employee Cynthia Pimental was read to the jury. She worked for Moore from about December 1995 to April 1997. Employees were supposed to use aliases. Callers inquiring about free legal aid were to be told "this is Legal Aid but we do charge[.]" They were to say they were "local" or "in the area" but that the "processing center" was in Modesto. Moore called his employees "players."

Stephen Goldberg, a lawyer for Northern California Lawyers for Civil Justice, a private nonprofit law firm, heard about Moore's business and contacted Moore's website in May 1998. He sent an e-mail claiming to be facing an eviction. The reply advised him to "call the Legal Aid Processing Center for document processing and assistance." Goldberg called the 800 number given and "Jay" explained that "his office was the local Legal Aid office mentioned on the [Judicial Council] summons."

Cathy Farrell, the Redding office manager for LSNC, made an audio tape...