Sprague v. Kekoa, A122018 (Cal. App. 12/8/2009)

Decision Date08 December 2009
Docket NumberA122018
PartiesROBERT SPRAGUE, Plaintiff and Respondent, v. CURTIS KEKOA, JR., Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Not to be Published in Official Reports


Pursuant to a written agreement, respondent Robert Sprague provided legal services to appellant Curtis Kekoa, Jr. in a dissolution proceeding commenced against Kekoa by his wife. The jury awarded Sprague damages in the amount of $219,221.75 for breach of contract, plus interest thereon of $30,931.28.

The focus of Kekoa's appeal is the pretrial grant of Sprague's motion for judgment on the pleadings on Kekoa's first amended cross-complaint alleging causes of action against Sprague for legal malpractice, breach of fiduciary duty, intentional infliction of emotional distress and breach of contract. Finding that Kekoa's cross-complaint failed to allege facts sufficient to state any cause of action, the court granted Sprague's motion. With respect to Kekoa's causes of action for malpractice and breach of fiduciary duty, the court concluded that Sprague did not have the requisite duties because the relationship between the parties was not that of attorney-client, as Kekoa maintained, but that of employer-employee.

We shall affirm the judgment. Finding that Kekoa's appeal and other pleadings in this court were designed to harass and delay and are therefore "frivolous" within the meaning of In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650 (Flaherty), and also because Kekoa repeatedly violated the Rules of Court and sought to introduce numerous matters not material to this appeal, thereby significantly prolonging this appeal and rendering it far more difficult to process than it should have been, we shall impose sanctions on Kekoa and his appellate counsel, Armen L. George. We shall also declare Kekoa a vexatious litigant. (Code Civ. Proc., § 391.)


The pertinent facts all relate to a bitter and extraordinarily protracted marital dissolution action commenced against Kekoa by his wife in 2003.

Kekoa is a licensed attorney in California, Pennsylvania and Hawaii, who was employed for many years as a commercial airline pilot. Between 1991 and 2007, he represented himself in at least 14 trial court cases and numerous appellate proceedings in California. He also represented himself in the trial court during various phases of the present case and the underlying dissolution action and several related cases.

In April 2006, Kekoa discharged Cindy Lee, the attorney then representing or assisting him in the dissolution case filed by his wife. Prior to Lee's discharge, Kekoa had obtained legal assistance from a series of other lawyers, including Sprague, who was then working as a "contract attorney" through an organization known as "Attorney Assistance." Kekoa was billed for Sprague's work by Attorney Assistance, which paid Sprague an hourly wage for the work he performed for Kekoa.

Shortly after Kekoa discharged Lee, he entered into a direct relationship with Sprague pursuant to a one-page "Independent Contractor Agreement" dated April 22, 2006. The agreement states that Kekoa wants Sprague "to assist or represent him" in the dissolution case and the two related actions. A provision drafted and insisted upon by Kekoa specifies that "[a]ll control and decision-making in said matters shall be retained by Client, whose decisions are final on procedural as well as substantive matters." Kekoa felt this provision necessary to "clarify" his "rights to control the litigation." When asked at deposition whether the Independent Contractor Agreement and, more specifically, the control provision, was a form he ordinarily used, Sprague said it was not and that the form was "highly customized and unique to Mr. Kekoa's circumstances."

A section of the agreement relating to fees and costs provides that $20,000 shall be deposited with Sprague as a fee advance, his fee shall be $175 per hour, Sprague may hire a "paralegal/consultant" whose fee shall be $95 per hour, and all fees of Sprague and the paralegal he hires incurred after exhaustion of the $20,000 deposit shall be paid to Sprague at the end of the marital dissolution case. The last paragraph of this section of the contract states that "Attorney is not expected, as an independent contractor, to incur significant costs, but Attorney shall be reimbursed for all reasonable costs incurred."

The claims set forth in Kekoa's cross-complaint appear to be based primarily on alleged injuries resulting from Sprague's June 27, 2006 stipulation (on behalf of Kekoa) that San Francisco Superior Court Commissioner Marjorie A. Slabach could serve as judge pro tem in the dissolution proceeding, and Sprague's alleged "refus[al] to diligently try to right his wrong" in making that stipulation. The making of the stipulation and Sprague's failure to have it vacated are evidently also the reason Kekoa and Sprague terminated their relationship in at the end of November 2006, and Kekoa refused to pay Sprague the amounts he seeks in the present action. At the time he was discharged, Sprague claimed he had rendered Kekoa services worth $265,109.25 pursuant to the terms of the agreement, but had received only $45,887.50 of that amount. Kekoa believed that "$50,000-$100,000" of the total amount Sprague claimed was "unjustified."

The fee dispute was submitted to nonbinding arbitration in accordance with the Rules of Procedure of the Bar Association of San Francisco. (See Bus. & Prof. Code, §§ 6200-6206.) The matter was heard on March 9, 2007, before three arbitrators. After conducting a hearing, the arbitrators concluded "that the total amount of fee[s] and/or costs which should have been charged in this matter is $222,645.25," of which Kekoa had paid only $45,887.50." Accordingly, after deducting $2,500 to cover half the arbitration fee, the arbitrators awarded Sprague $174,257.75.

Considering the award inadequate, Sprague elected to reject it. On May 11, 2007, he filed a first amended complaint alleging causes of action for breach of the agreement, quantum meruit, open book account, and account stated.

Kekoa filed his cross-complaint about a month later and Sprague answered it the next day, alleging 14 affirmative defenses.

On April 17, 2008, Sprague moved for judgment on the pleadings on the ground the cross-complaint failed to state facts sufficient to constitute any cause of action. With respect to the cause of action for breach of contract, Sprague maintained that Kekoa's allegations (viz., that "Sprague demanded more money upfront than set forth in the contract else he would not perform[;] Kekoa said that he was not obligated to pay beyond that set forth in the contract and did not") failed to allege how Kekoa was damaged as a result of the purported breach. With respect to the cause of action for intentional infliction of emotional distress, Sprague claimed Kekoa failed to allege outrageous conduct, severe emotional distress, intentional conduct or at least reckless conduct.

Sprague maintained that Kekoa's causes of action for professional negligence and breach of duty failed to allege and he could not show that any such duties arose out of the Independent Contractor Agreement. This contention, upon which the trial proceedings focused, was that Kekoa's causes of action for legal malpractice and breach of fiduciary duty were based on the erroneous assumption that the parties' agreement created an attorney-client relationship. In Sprague's view, the "control provision" in the agreement made the relationship between the parties that of employer and employee, which did not impose on him any fiduciary duty. Sprague contended he "could no more be sued for malpractice by Kekoa than an associate at a Wall Street law firm can be sued by his employer for legal malpractice." Sprague maintained that while the statement in the agreement that Kekoa wanted to engage Sprague "to assist or represent him" in the three specified proceedings was ambiguous as to whether the services Sprague was called upon to deliver under the agreement constituted legal assistance or legal representation, any ambiguity was eliminated by the control provision.1

Agreeing with all of Sprague's contentions, the trial court granted judgment on the pleadings with respect to the entire cross-complaint. The court found that Kekoa's claims of legal malpractice and breach of fiduciary duty were foreclosed by the fact that Sprague was acting as an employee. Kekoa could not prevail on his breach of contract claim, the court concluded, because it "[did] not allege facts sufficient to state a cause of action for breach of this contract of employment establishing an employer-employee relationship," and also because "the damages allegations are vague, speculative and not provable." The court also appears to have agreed with Sprague that Kekoa's claim of intentional infliction of emotional distress was unsustainable due to his failure to allege outrageous conduct, severe emotional distress, intentional conduct or at least reckless conduct, and causation and damages. Kekoa was not prevented from amending the cross-complaint, but did not do so.

The order granting Sprague judgment on the pleadings also stated that it "does not eliminate Kekoa's defenses to plaintiff's action. If Sprague did not perform the work, he would not be entitled to wages for hours of work that he did not do. However, the issues are narrowed in that there will not be any testimony regarding the dissatisfaction of the work [sic]. The issue will be merely was the work performed."

The order additionally found that Monica Blake was the "paralegal/consultant" Sprague was authorized by the contract to hire at a wage of $ 95 per hour, that she was also Kekoa's employee, and that her work assisting Sprague "shall be included along with p...

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