Travenia v. Law Office of Harry E. Hudson CA3

Filed 11/1/21 Travenia v. Law Office of Harry E. Hudson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----

KAREN TRAVENIA, C092296

Plaintiff and Appellant, (Super. Ct. No.
STKCVUPN2015000091)
v.

LAW OFFICE OF HARRY E. HUDSON et al.,

Defendants and Respondents.

Plaintiff Karen Travenia, representing herself in pro. per., appeals from the trial
court’s order granting the motion for nonsuit brought by defendants Harry E. Hudson and
the Law Offices of Harry E. Hudson (collectively Hudson) following the parties’ opening
statements. Hudson verbally moved for nonsuit on the ground Travenia had not
identified evidence supporting her legal malpractice claim and had presented no evidence
as to her other two claims. The trial court asked Travenia whether she was going to offer
expert testimony at trial; Travenia said she was not. The trial court explained expert
testimony was necessary to establish the pertinent standard of care and thus, in the

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absence of having an expert prepared to testify at trial, the motion for nonsuit was granted
and the matter dismissed. Travenia appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Travenia failed to provide “a summary of the significant facts limited to matters in
the record” as to her opening statement, the motion for nonsuit, and the trial court’s
ruling, as required by California Rules of Court, rule 8.204(a)(2)(C). Further, Travenia’s
complaint against Hudson is not contained in the clerk’s transcript on appeal. As we can
best glean from the minute order addressing Hudson’s motion for summary judgment or,
in the alternative, summary adjudication, Travenia’s causes of action remaining against
Hudson at trial were for legal malpractice, breach of fiduciary duties, and fraud. We do
our best to summarize Travenia’s opening statement, which was at times confusing and
unclear.
During her opening statement at trial, Travenia provided the jury with a summary
of her background and explained the case arose out of a sexual harassment claim she had
brought against the Office of the Attorney General. Hudson represented her in the sexual
harassment case which resulted in a settlement.
Travenia discussed the four elements pertaining to the legal malpractice claim and
identified various documents she intended to introduce as evidence: a client agreement,
various emails (in some of which Travenia asked Hudson to request administrative
leave), and a letter from the Department of Justice purportedly stating Travenia’s sexual
harassment claim was substantiated. She explained, “[t]he negligence I’m speaking of is
I’m not getting a [sic] feedback, I’m not getting any assistance from Mr. Hudson.”
Travenia identified a document as “the original complaint and the allegations,” however,
it is unclear to what action the document pertained.
Travenia further showed the jury the following documents she said supported her
“negligence” claim: a letter she wrote to Hudson asking for administrative leave and
discussing her concerns that the Department of Justice “may be in [her] home”; a letter

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she wrote to Hudson demanding “compensation for the things that [she] went through
from 2005 to 2009” and stating “ ‘[t]he harassment continues” and “ ‘I am even followed
when I leave the building to go to lunch’ ”; a letter from Hudson to an attorney for the
Department of Justice enclosing a letter purportedly stating Travenia’s sexual harassment
claim was substantiated; an email from Hudson to the attorney for the individual accused
of sexual harassment discussing “ ‘income tax issues’ ” and a paragraph in an agreement
as to a “ ‘promise not to prosecute’ ” (Travenia stated the email supported her
“negligence and breach of fiduciary duty” claims); a copy of a mandatory settlement
conference statement, which Travenia said she never received; a minute order; a tentative
ruling on a motion regarding subpoenas issued by the Department of Justice, which
Travenia asserted “he was late doing that” and “defendant failed to oppose on the
merits”; and a document in which Hudson wrote to the Department of Justice’s attorney
that Travenia was convinced the $138,500 she was awarded was taxable and, because “it
may be,” asking whether the payment can be divided into three payments instead --
which the Department of Justice’s attorney said she could not do.
Travenia told the jury the settlement check she received stated it was for emotional
distress and an Internal Revenue Service publication stated: “ ‘If the emotional stress is
due to a personal injury that isn’t due to a physical injury or sickness, for example,
unlawful discrimination or injury to reputation, you must include the damages in your
income except for any damages you receive for medical care due to that emotional
distress. Emotional distress including physical symptoms that result from emotional
distress such as headaches, insomnia, and stomach disorders.’ ” Travenia next identified
an email in which she wrote she could not sign an agreement because it “undercuts [her]
complaint in its entirety, making [her] the laughing stock, for the sum of $65,000 for four
years” and expressing other concerns and requesting administrative leave. Travenia
further showed the jury a letter she had sent to her prior attorney and discussed her
negative experience during a mediation. She said, “Mr. Hudson said two things to me: It

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would not be taxable and they would get me for bad faith, so I signed the stipulation.”
She also said Hudson threatened to withdraw as her counsel on two occasions.
Travenia said the settlement agreement provided she would not return to work,
which she had not anticipated, and which negatively affected her retirement income and
caused her financial loss due to her age. This, she asserted, was “a loss from his
negligence.” Travenia further said Hudson failed to conduct investigations and “there
was inaction.” She said the Department of Justice “wanted to humiliate [her] and put
[her] through a psychological or psychiatric evaluation” and Hudson “ ‘failed to reply on
the merits of the psychiatric evaluation.’ ” Travenia introduced letters in which she
expressed frustration with the lack of communication and her disagreement with
Hudson’s handling of her case. She also introduced emails from Hudson to the
Department of Justice’s attorney regarding an ex parte notice, a notice of settlement, and
a pending motion for summary judgment. Travenia said Hudson told her to draft a
portion of the opposition to the motion for summary judgment at the last minute and,
“had [she] not filed that stipulation of settlement the next day, [her] case would have been
thrown out because he didn’t reply.” Travenia also referenced an email she had sent to
Hudson in which she said she “ ‘was told that it wouldn’t be taxable’ ” and “ ‘signed
based on that premise,’ ” expressing concern regarding her financial future, and asking
Hudson to file a motion to set the stipulation aside.
Travenia introduced a “subsequent settlement agreement and release of claims that
the [Department of Justice] drafted after [she] signed the stipulation for settlement,”
which was unsigned and undated. She explained the document contained various terms
of which she was unaware and she refused to sign it. Thereafter, Travenia filed an ex
parte motion and explained she no longer wanted Hudson to represent her. She detailed
various concerns with his “ ‘negligence, incompetent attention, [and]
unprofessionalism,’ ” as stated in a letter. Travenia said she filed a request for a

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temporary restraining order against the Department of Justice’s attorney, which was
denied.
Travenia identified the first page of the first amended complaint, stating she
“won’t go through each and every page on that, it is on file here with the court.” 1 She
explained she was “presenting the things that really support the four elements of
malpractice,” and closed with: “Also, know as an attorney, everyone probably already
knows this, that they have a bar, California Bar Association. And so they have rules of
professional conduct, that bar. Mr. Hudson is held to those standards. They are ethical
standards, of course. But everything that I think I’ve experienced, he has breached those
standards. And to -- I hope, you know, you can just look at the evidence and keep an
open mind and in my opinion it supports the four elements of malpractice.”
Hudson next presented his opening statement. He represented Travenia during a
mediation in which the parties entered into a settlement agreement containing the
material terms of the settlement; other details in the settlement agreement were to be
ironed out at a later time, such as the details of a restraining order. He further described
some details pertaining to his representation of Travenia and his investigation of her case.
He explained the Department of Justice had filed a motion for summary judgment and,
based on his investigation of the case, he believed it was prudent to settle the case,
advising Travenia it would be difficult to obtain a “large-dollar settlement.” Hudson said
his expert would discuss the “elements that need to be proved in her underlying case” and
he anticipated the expert would state Travenia had a good chance of losing the motion for
summary judgment and would not have obtained a favorable jury verdict even if the
motion for summary judgment was denied.

1 The document is not contained in the clerk’s transcript on appeal.

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 Hudson said the morning after entering into the settlement agreement, in which
Travenia agreed to retire from the Department of Justice, Travenia called Hudson and
expressed concern “about the fact that this settlement may be taxable because of the
reference to it being for emotional distress trauma.” Hudson spoke to a tax attorney who
said it would not be taxable if Travenia sustained an injury. Hudson told Travenia he did
not believe it would be taxable. In any event, the Department of Justice refused to
modify the settlement agreement “to do anything about it” even if the settlement award
was taxable.
Hudson explained Travenia refused to sign the settlement agreement and the
Department of Justice filed a motion to enforce the settlement agreement as written
without her signature, which was granted. Hudson said his expert was a licensed attorney
with over 40 years of legal experience and had handled matters involving the State Bar.
Although Travenia filed a complaint with the State Bar, he was not reprimanded.
After concluding his opening statement, Hudson verbally moved for nonsuit.
Hudson argued Travenia had failed to identify any evidence supporting her claims of
legal malpractice. He further argued she “presented nothing in her opening with respect
to the issue of fraud” and reiterated “[s]he has presented nothing in respect to the other
two counts.” Travenia objected to the motion, stating she “didn’t expect to actually start
producing any documentation” during her opening statement and she “was confused as to
what to do.” She further said: “I do have evidence of fraud. Primarily was entered into
the settlement agreement twice, none of which was written. And the California Rules of
Conduct indicate that an attorney must when entering into negotiations for settlement
advise their client in writing, and that never happened. I was told if I didn’t sign -- first I
was told I was being unreasonable.” Travenia continued: “The reason he said -- ‘he’
meaning Mr. Hudson, said that, he said he was going to leave the case if I didn’t sign in
mediation . . . is because I was being unreasonable. And he never presented me with
anything written. He didn’t tell me about the true offers in either event. I didn’t know of

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mediation until the night before, and I have things to substantiate what I’m saying. [¶]
As far as the opening statement, I covered the four -- I sued for malpractice and I covered
the four elements of malpractice, but I haven’t finished producing evidence to support
this lawsuit.”
Hudson responded: “In her opening, she made no reference to the fact of
supposedly she was not notified of the settlement conference until the night before. I
don’t know if that is true or not. I don’t think that matters. That has nothing to do [sic]
whether somebody is competent or not. She made no reference to false offers. I know
exactly what she is talking about. There are some indications of potential payment plans
in reference to what Ringler and Associates does, however those were not offers. That
starts with ‘Are you interested in a resolution?’ That is a settlement -- what is that, starts
with settlement [sic].”
The trial court noted Hudson mentioned he had an expert who was going to offer
legal opinions regarding his conduct. The trial court then asked Travenia: “Ms.
Travenia, you do not have an attorney to come in and testify about the professional
negligence; is that right?” Travenia responded: “I don’t have an attorney to testify about
that, but if it’s what the statute says . . . .” The trial court confirmed, “[i]t’s required
under the law.” Travenia disagreed: “Your Honor, I beg to differ because it says with
the failure of an attorney, the performance is so clear that a trier of fact may find
professional negligence unassisted by expert testimony, the expert testimony is not
required. [Citation], it’s not required.” The trial court explained: “Yes, it is. It is
required in a case. It’s only so egregious someone missing the statute of limitations that
you don’t need an attorney for. When it comes to everyday duties the attorney does and
the attorney’s conduct during settlement negotiations, representing at trial, making their
decisions, it requires expert testimony.” Travenia retorted: “I can get an attorney if you
would allow me, but you wouldn’t allow me an extension, sir.” The judge replied:
“We’re at the end of the five years. I did deny your motion. [¶] You need an attorney on

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these. [¶] The Court is going to grant the motion of nonsuit as to the remaining counts.
[¶] The matter is dismissed.”
Travenia appeals.
We initially dismissed Travenia’s appeal for failing to file the designation of the
record on appeal in the superior court as required by rule 8.121 of the California Rules of
Court. We thereafter granted Travenia’s request to reinstate the appeal “on the condition
that [she] file the designation of the record on appeal with the trial court clerk by
November 30, 2020.” The order further provided “[t]he trial court is authorized to accept
the designation if presented within the time provided and proceed with preparation of the
record of appeal,” and “[f]ailure to comply with the conditions of this order will result in
the immediate dismissal of the appeal without further notice.”
Travenia filed the notice designating the record on appeal in the superior court on
December 8, 2020. The record on appeal was filed in this court on February 26, 2021.
The parties thereafter filed their respective appellate briefs.
DISCUSSION
I
The Appeal Was Not Dismissed
Hudson argues, “[t]his Court by its own order dismissed this Appeal on
December 1, 2020,” because Travenia failed to comply with the November 20, 2020,
order’s directive to file the designation of record on appeal with the superior court clerk
by November 30, 2020. Hudson is mistaken. To dismiss an appeal, an order of dismissal
must be entered. The November 20, 2020, order merely advised Travenia of the
ramifications if she failed to comply with it. This appeal has, thus, not been dismissed
and Hudson’s assertion that this court “does not retain jurisdiction to decide this Appeal
on its merits” is incorrect.
We exercise our discretion to permit Travenia to maintain her appeal irrespective
of her failure to comply with the November 20, 2020, order because the record on appeal

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was filed in this court and the parties prepared and filed their respective briefs on the
merits. We do not agree with Hudson’s assertion that equity demands dismissal.
II
Travenia Has Failed To Prove Error
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter
of law, plaintiff’s evidence does not permit a jury to find in plaintiff’s favor.” (Unigard
Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1234.) “The granting
of a motion for nonsuit is authorized by Code of Civil Procedure 581c at any time after
plaintiff has completed his[, her, or its] opening statement.” (Gallegos v. Union-Tribune
Publishing Co. (1961) 195 Cal.App.2d 791, 796.) “Such judgment will be affirmed if
from all the facts alleged in the complaint and stated by counsel and all the favorable
inferences to be deduced therefrom, it is plainly apparent that a case cannot be
maintained by the plaintiff.” (Paul v. Layne & Bowler Corp. (1937) 9 Cal.2d 561, 564.)
We review de novo whether a nonsuit was properly granted. (Curtis v. Santa
Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800.) That said, even in de
novo review cases, our review is limited to only the issues properly raised and adequately
briefed on appeal. (See Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th
118, 125.) The appellant must affirmatively demonstrate error by presenting citations to
the record and any supporting authority. (Mark Tanner Construction, Inc. v. HUB
Internat. Ins. Services, Inc. (2014) 224 Cal.App.4th 574, 584.)
Here, the question is whether, in the absence of expert testimony as to the standard
of care applicable to attorneys, Travenia has established that there was an aspect of her
case as to which a properly instructed jury could have found in her favor given the facts
asserted in her opening statement. As we explain, Travenia has failed to carry her burden
of proving error.
Before we delve into the issue presented, we note our review is subject to various
procedural and substantive rules and is limited to only those issues appropriately

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preserved for and presented on appeal. While we are not unsympathetic to the efforts a
pro. per. party expends in presenting his, her, or their case, and fully recognize the
personal investment a pro. per. party has in his, her, or their case, we must treat a pro. per.
party the same as a represented party, i.e., uniformly applying the procedural and
substantive rules. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
In that vein, we disregard the following in our review of this case: (1) factual
assertions unsupported by citations to the record (Nwosu v. Uba, supra, 122 Cal.App.4th
at p. 1246 [“ ‘[i]f a party fails to support an argument with the necessary citations to the
record, . . . the argument [will be] deemed to have been [forfeit]ed’ ”]); (2) citations to
cases and general statements of law in the absence of reasoning applying the rule of law
or analysis in the cited cases to the facts of this case (Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52 [“citing cases without any discussion of their application to the
present case results in forfeiture”]); (3) conclusory statements and arguments failing to
disclose the reasoning by which we are asked to reach the conclusions asserted (United
Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153); and
(4) citations to out-of-state cases to the extent there is established California precedent
and the out-of-state cases have no persuasive value as to any undecided issue under
California law.
We further note the following disagreements as to factual assertions made in the
opening brief. First, the trial court did not dismiss Travenia’s case on its own motion; it
dismissed the case in response to Hudson’s motion for nonsuit. Second, the trial court
did not fail to provide Travenia “a chance to correct or enhance her opening statement,”
as she asserts. The record shows the trial court gave Travenia an opportunity to respond
to the motion for nonsuit, and she did, in fact, retort. Travenia did not request an
opportunity to modify or add to her opening statement; she instead asked to continue trial
to obtain an expert, to which the trial court responded it had previously denied her motion
to continue because of the five-year deadline to bring the case to trial. Travenia does not

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assert the trial court’s refusal to continue trial was error. Third and finally, Travenia did
not introduce her causes of action, other than the legal malpractice cause of action, to the
jury. In the cited portion of the reporter’s transcript upon which Travenia relies, she told
the jury: “This is the original complaint and the allegations. There were several pages,
so I will just skip through the meat of the pages and go to the last page. So that later on
you can review this, so that is the last page of the complaint. Like I said, it’s very
lengthy, it’s 13 pages.”
Turning to the merits of the matter, we infer from the trial court’s ruling that all of
Travenia’s causes of action were dependent on her proving Hudson had breached his
standard of care to her, as her attorney. Travenia points to nothing in the record
establishing the contrary and we do not have a copy of the operative complaint in the
record on appeal for our review. (See Paul v. Layne & Bowler Corp., supra, 9 Cal.2d at
p. 564 [review of motion for nonsuit requires review of complaint and statements by
counsel].) Moreover, in her retort to the motion for nonsuit as to the fraud cause of
action, Travenia asserted her fraud cause of action was based on Hudson’s alleged failure
to provide her with written notice of settlement negotiations and/or agreements, delay in
notifying her of mediation, and his threat to withdraw as counsel during mediation. Such
allegations pertain to an attorney’s standard of care.
The standard of care against which alleged acts of professional negligence are to
be measured usually requires expert testimony. (Lipscomb v. Krause (1978) 87
Cal.App.3d 970, 975-976; Davis v. Damrell (1981) 119 Cal.App.3d 883, 887 [“When the
challenged conduct or omission relates to matters not within the common knowledge of a
layman, the question of professional negligence will generally require expert testimony
for appropriate factual resolution”].) A legal malpractice plaintiff can make out a case
without presenting expert testimony only in those cases where the failure of the attorney
is so clear that reasonable minds could not differ, or the nature of the omission is such
that a trier of fact would not require the assistance of an expert to understand why it did,

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or did not, violate the standard of care. (Wilkinson v. Rives (1981) 116 Cal.App.3d 641,
647-648 [noting existence of exception to requirement of expert testimony but finding it
inapplicable to attorney’s failure to advise client to execute optional affidavit when
recording homestead declaration].) Examples of such exceptional circumstances include
an attorney’s abject failure to conduct any research on a point of law (Stanley v.
Richmond (1995) 35 Cal.App.4th 1070, 1093-1094), or advising a client to commit an act
that is a violation of the Penal Code (Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502,
1509).
Based on our review of Travenia’s opening statement, we agree with the trial court
that this is not the sort of case in which an attorney’s breach of the applicable standard of
care can be established without the aid of expert testimony. Questions presented as to an
attorney’s standard of care in receiving and providing advice regarding settlement
proceeds, filing documents, assessing the merits of a case, timely communicating with a
client, discussing withdrawal of representation as counsel, etcetera, require expert
testimony. We thus affirm.
DISPOSITION
The judgment is affirmed. In the interest of justice, the parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

/s/
Robie, J.

We concur:

/s/
Blease, Acting P. J.

/s/
Duarte, J.

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