Judge Alison Mackenzie, Case Number: 23STCV00370, Date: 2024-05-06 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV00370, Date: 2024-05-06 Tentative Ruling

Case Number: 23STCV00370 Hearing Date: May 6, 2024 Dept: 55

NATURE OF PROCEEDINGS: Defendants’ Motion for Summary Judgment.

BACKGROUND

LINDA CARRILLO (“Plaintiff”) filed a Complaint for Legal Malpractice against ERNEST J. KIM (“Kim”) and KIM & LEE LLP (collectively, “Defendants”), the attorney and law firm who prepared an estate plan for Plaintiff and her late husband Carmen Edward Carrillo (“Eddie”). Plaintiff alleges that Kim prepared The 2016 Carmen Edward Carrillo Irrevocable Trust dated October 11, 2016 (the “2016 Trust”) but failed to ensure that all property was titled to the trust, as to which Plaintiff is a trustee and beneficiary.

Defendants bring a motion requesting summary judgment. Plaintiff opposes the motion.

LEGAL STANDARD

In moving for summary judgment, a “defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” Code Civ. Proc., § 437c(p)(2). Once the defendant has satisfied that burden, the burden shifts to the plaintiff “to show, by responsive separate statement and admissible evidence, that triable issues of fact exist.” Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal. App. 4th 1411, 1418, disapproved on other grounds by Black Sky Cap., LLC v. Cobb (2019) 7 Cal. 5th 156, 165; see also Code Civ. Proc., § 437c(p)(2).

The function of a motion for summary judgment is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

EVIDENTIARY OBJECTIONS

The Court overrules Defendants’ evidentiary objections to the declaration of Joshua Furman.

ANALYSIS

Plaintiff’s legal malpractice claim alleges that she is a trustee and beneficiary of the 2016 Trust. Compl., ¶ 7. She alleges that Kim knew that Plaintiff and Eddie intended for all relevant property to be titled to the 2016 Trust but that Kim failed to perform the tasks necessary to fulfill this intent. Id., ¶¶ 7, 9. Eddie died in 2021 and Plaintiff opened probate for his estate. Id., ¶ 11. Eddie’s daughter from a prior marriage claimed that some property remained in an old trust and was not transferred to the 2016 Trust. Id., ¶ 12. Plaintiff alleges that Kim failed to ensure that all applicable properties were transferred to the 2016 Trust even after Eddie’s death, and even though he could have done so in his role as the “Trust Protector” of the 2016 Trust. Id., ¶¶ 13-16. Plaintiff alleges that Defendants’ conduct constitutes a breach of their professional duties to Plaintiff. Id., ¶¶ 19-21. Plaintiff alleges that Defendants’ conduct resulted in damages to Plaintiff in the form of litigation costs from the probate case with Eddie’s daughter and the potential loss of the assets that were not transferred to the 2016 Trust. Id., ¶¶ 17, 22. Plaintiff alleges that Kim agreed to toll the statute of limitations in this dispute from 1/3/22 through 11/30/22. Id., ¶ 18.

The elements of a claim for attorney malpractice are:

Duty of the professional to use such skill, prudence, and diligence that other members of the profession commonly possess and exercise;
Breach of that duty;
Proximate causal connection between the negligent conduct and the resulting injury; and
Actual loss or damage resulting from the professional's negligence.

Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 247-48. Whether an attorney breached a duty is ordinarily a question of fact and can only be resolved as a matter of law in “rare” cases where there can be no reasonable doubt as to the attorney’s breach. Dawson v. Toledano (2003) 109 Cal.App.4th 387, 396-97. Causation of damages is determined by case-within-a-case approach, involving a decision as to what should have been the result in the underlying matter, and questions about what would have happened had lawyers acted otherwise are issues of fact unless reasonable minds could not differ as to the legal effect of the evidence. Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531-32.

1. Duty

Defendants argue that they had no duty to Plaintiff to compel the transfer of assets into the 2016 Trust because the undisputed facts show at or about the time Kim prepared the 2016 Trust, Defendants, Plaintiff, and Eddie agreed that the property at issue (the “Bledsoe house”) would not be transferred into the Trust for about six months, because of potential adverse tax consequences. Mot., pp. 13-14. Defendants also contend that that Plaintiff cannot establish the existence of duty and/or causation because Plaintiff and Eddie never asked for Defendants’ further help with the transfer of the Bledsoe house into the 2016 Trust and Defendants formally gave notice of the end of their representation to Plaintiff and Eddie. Id.

Defendants contend they had no duty to Plaintiff but of course they had a duty to Plaintiff as her attorneys. Their argument really amounts to a contention that their legal representation of Plaintiff met the standard of care. Whether attorney advice and actions breached the standard of care turns upon whether they were so legally deficient when given, that it demonstrates a failure to use the skill, prudence, and diligence that lawyers of ordinary skill and capacity commonly possess and exercise. Unigard Ins. Group v. O'Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1237. Importantly, “even when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention.” Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1684, 1686 (“Foreseeability of harm,… has become the chief factor in duty analysis.”).

“[E]xpert testimony may be required, as is frequently the case, in order to resolve the factual issue of whether the attorney adhered to the standard of care.” Dawson v. Toledano (2003) 109 Cal.App.4th 387, 397. “‘[I]f the attorney’s negligence is readily apparent from the facts of the case, then the testimony of an expert may not be necessary.’” Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093.

The Court concludes that, even if Defendants had presented evidence to support their position as to the standard of care, triable issues of fact exist. Here, there is evidence of Defendants’ failures to meet the duty of care, as to which reasonable minds could differ without the need for expert opinion. Even with expressly limited representation (Ernest Kim Declaration, ¶¶ 9-10), Defendants had a duty to anticipate foreseeable problems and advise the clients about seeking further attorney representation or how to handle themselves the transfer of the real property after waiting at least six months. Defendants did not explain to Plaintiff as a client what to do later to transfer assets, including the Bledsoe house to the 2016 Trust. See Sep. Stmt. in Support of Oppn. To MSJ No. 11. Also, the written “Explanation Checklist” in evidence does not expressly communicate that information. Further, its incomplete statement, without the blank filled in, is unhelpfully uncertain as to the mechanics and timing of transferring the house property— "We transferred ___ real properties to your Trust.” Ernest Kim declaration, ¶8.

Although Defendants may not have known the decedent’s imminent health risks (Ernest Kim declaration, ¶ 7), anyone could be at risk of dying at any time, such that arranging to guard against needless delay in property transferring, would be prudent foresight.

In their reply, Defendant contend they have also demonstrated lack of duty because the undisputed facts show that Kim had no power to transfer the Bledsoe house in his role as the Trust Protector of the 2016 Trust. Reply, p. 1. Defendants’ moving papers and separate statement did not raise the Trust Protector issue as a basis for establishing a lack of duty. In any event, the scope of powers for a Trust Protector, and whether Kim met the standard of care in his refusal to transfer the Bledsoe house to the 2016 Trust, would require expert testimony for which none was provided by Defendants.

2. Statute of Limitations

Defendants contend this case was untimely filed beyond the one-year statute of limitation of Code of Civil Procedure section 340.6, which accrued upon the death of Eddie in 2021, without any tolling other than the agreement to toll.

As to the statute of limitations in legal malpractice cases, the time of actual injury is predominately a factual inquiry properly resolved by the trier of fact. Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194 Cal.App.4th 557, 576. “As determining actual injury ‘require[s] examination of the particular facts of each case in light of the alleged wrongful act or omission,’ there are no bright line rules regarding the occurrence of actual injury.” Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 567. “[A]ctual injury may occur even if the loss is contingent on … final adjudication.” Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276. The Statute of Limitations regarding legal malpractice is tolled while the attorney continues to represent the client regarding the same specific subject matter, and tolling depends upon objectively viewing the circumstances from the client’s perspective to ascertain if the client reasonably should expect the continued representation. Laclette v. Galindo (2010) 184 Cal.App. 919, 928.

Triable issues of fact exist as to whether, in 2021, there existed alternative ways to title the subject property to the trust, such that damages did not accrue earlier. See Sep. Stmt. in Support of Oppn. To MSJ Nos. 20-21. Per the opposing Joshua Furman declaration, the parties entered into tolling agreements, such that the last day to file this action was 2/24/23, which would make it timely. Further, because Defendants admittedly did more work on behalf of Plaintiff in or around February 2021 in connection with the probate case, (Ernest Kim declaration, ¶13), disputes exist about whether the statute of limitations was tolled based upon whether the client reasonably expected continuing representation due to not knowing how to transfer the Bledsoe house after six months, and whether damages first irreparably accrued after that date.

In their motion and reply, Defendants cite to a case that is distinguishable. That case involved no later solution for the client harm suffered after attorney representation had caused the harm-- Callahan v. Gibson, Dunn & Crutcher (2011) 194 Cal.App.4th 557, 572-574. See Motion, pp. 19-20. But here, various possible solutions through Probate Court continued after attorney representation, such that client harm had not accrued at the time of the representation. See Opposition, p. 13.

So, there are disputes as to whether this lawsuit was filed timely on 1/9/23.

CONCLUSION

The Court denies the motion.