Judge Elaine Lu, Case Number: 21STCV07694, Date: 2024-01-05 Tentative Ruling

On February 26, 2021, Plaintiff Gamil Youssef (“Plaintiff”) filed the instant legal malpractice action against Defendants Robert C. Baker, and Baker, Keener, & Nahra, LLC (jointly “Defendants”). The complaint asserts three causes of action for (1) Legal Malpractice, (2) Breach of Contract, and (3) Breach of Fiduciary Duty. The action arises from Defendants’ representation of Plaintiff in an underlying lawsuit between Plaintiff and the County of Los Angeles in Los Angeles County Superior Court Case No. BC443263 (“Underlying Action”). (Complaint ¶¶ 6-12.)

On August 10, 2023, Defendants filed the instant motion for summary judgment. On December 13, 2023, Plaintiff filed an opposition. On December 28, 2023, Defendants filed a reply.

On August 6, 2010, Plaintiff filed suit against the County of Los Angeles in the Underlying Action. (Complaint ¶ 6.) From October 2015 to August 20, 2019, Defendants represented Plaintiff in the Underlying Action. (Ibid.)

“On or about November 10, 2016, Defendants filed a Third Amended Complaint setting forth four causes of action for Retaliation, Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing and for Defamation.” (Id. ¶ 7.)

“On or about February 24, 2017, Defendants dismissed the causes of action for Retaliation and Defamation without Plaintiff[’]s consent, thereby leaving Plaintiff without the opportunity to recover general damages. On or about March 20, 2017 Defendants made an oral motion to reinstate those causes of action, which was denied, with a directive to file a written motion; however, Defendants never filed a written motion to reinstate those causes of action.” (Id. ¶ 8.)

“On or about April 14, 2017, Defendants notified the court that the Underlying Action had been settled based on a $250,000 offer from the County of Los Angeles and Defendants’ agreement with Plaintiff that Plaintiff would receive $200,000 from the settlement and not be required to pay the lien filed by his previous attorney, Emmanuel Akudinobi, Esq. Plaintiff consented to the settlement on these terms because Defendants had dismissed (and failed to reinstate) his causes of action for Retaliation and Defamation, but at a subsequent hearing on Plaintiff[’]s motion to expunge the Akudinobi lien, Defendants failed to demonstrate that the lien was invalid, and the Court denied the expungement, which resulted in the settlement with the County not being consummated.” (Id. ¶ 9.)

“On or about April 23, 2019, Plaintiff's case went to trial by jury, resulting in a defense verdict on April 30, 2019. Following the verdict, Plaintiff requested that Defendants represent him in post trial motions, including a motion for judgment notwithstanding the verdict, motion for a new trial and a motion to seek an award of attorney fees. Defendants refused to provide Plaintiff with further representation, which required Plaintiff to substitute himself in place of Defendants, so he could represent himself in the post trial proceedings.” (Id. ¶ 10.) “Thereafter, Plaintiff represented himself in post trial motions, including a motion for a new trial and in opposing the County of Los Angeles' motion for an award of attorney fees. Plaintiff did not prevail on either motion[,] and judgment was entered on the verdict on October 7, 2019, followed by the Court awarding the County of Los Angeles $454,071.50 in attorney fees and $72,874.15 in costs on or about March 12, 2020.” (Id. ¶ 11.)

On December 19, 2019, Plaintiff filed an appeal of the judgment in the Underlying Action that was pending when the instant action was filed. (Id. ¶ 12.)

In conjunction with the reply, Defendants object to portions of Plaintiff’s declaration and exhibits included with the opposition. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q), [italics added].) Here, Plaintiff’s declaration and exhibits attached to the opposition objected are immaterial to the disposition of the instant motion. Accordingly, the Court declines to rule on Defendants’ evidentiary objections to the Plaintiff’s declaration and exhibits attached to the opposition.

As to Defendants’ objections to Plaintiff’s request for judicial notice the Court rules as follows:

In conjunction with the moving papers, Defendants request that the Court take judicial notice of the following:

3. The Court of Appeal Opinion in Gamil Youssef v. Los Angeles County Department of Public Social Services (Court of Appeal Case Nos. B302773 and B306187) issued on July 15, 2022

4. Order Granting Court Fee Waiver re Appellate Filing Fees, dated December 6, 2019 in the Underlying Action

5. Plaintiff’s Notice Designating Record on Appeal, dated December 13, 2019 in the Underlying Action

In opposition, Plaintiff requests that the Court take judicial notice of the following:

2. GAMIL YOUSSEF VS LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOC, at el *10/07/2016 PLANITIFF'S MOTION IN LIMINE NO. 3 TO PRECLUDE REFERENCE TO ALLEGATIONS OF MISCONDUCT AGAINST PLAINTIFF WITH RESPECT TO HIS - FORMER EMPLOYMENT WITH DEFENDANT; MEMORANDUM OF POINTS AND AUTHORITIES in the Underlying Action

3. 03/25/2019 Minute Order (Court Order Re: Rulings on Motions in Limine), in the Underlying Action

7. The Complaint filed 10/27/2004 in GAMIL YOUSSEF VS COUNTY OF LOS ANGELES ET AL (Case No. BC323636)

8. The Complaint filed 9/6/2017 in ENID GOLDENBERG VS COUNTY OF LOS ANGELES DEPT OF PUBLIC SOCIAL (Case No. BC674920)

As the court may take judicial notice of court records and government records, (See Evid. Code, § 452(c),(d)), the requests for judicial notice are granted. However, the Court does not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Defendants and Plaintiff have each submitted Undisputed Material Facts, which the court will reference as “DMF” for Defendants’ Undisputed Material Facts and “PMF” for Plaintiff’s Additional Material Facts.

“On August 6, 2010, Plaintiff Gamil Youssef (‘Plaintiff’) filed a lawsuit against the County of Los Angeles (‘COLA’), Los Angeles Superior Court Case No. BC443263 (the ‘Underlying Action’).” (DMF 1.) “After being represented in the Underlying Action by prior counsel, Defendants Robert C. Baker and Baker Keener Nahra, LLP (‘Defendants’) commenced representing Plaintiff in October 2015.” (DMF 2.)

“On November 10, 2016, Defendants filed a Third Amended Complaint in the Underlying Action on behalf of Plaintiff alleging causes of action for (1) retaliation, (2) breach of contract, (3) breach of the implied covenant of good faith and fair dealing, and (4) defamation.” (DMF 3.) “The Underlying Action arose out of Plaintiff’s former employment with COLA when he was terminated in July 2004. Plaintiff filed a discrimination case against COLA, which settled on August 10, 2006 (the ‘Underlying Settlement Agreement’).” (DMF 4.) “In addition to payment of $250,000, the Underlying Settlement Agreement required COLA to ‘classify the Plaintiff’s termination as a voluntary resignation from his employment with the County of Los Angeles … effective immediately upon receipt of the settlement amount’ and that ‘if there is any inquiry by any potential employer, that all the County will say to any potential employer will be … dates of Mr. Youssef’s employment … the position that he held … and rate of pay.’” (DMF 5.)

“Plaintiff filed the Underlying Action alleging that COLA was breaching the nonmonetary terms of the Underlying Settlement Agreement by providing false and misleading information to prospective employers.” (DMF 6.)

“On April 30, 2019, the Underlying Action went to a jury trial resulting in a defense verdict against Plaintiff in favor of COLA.” (DMF 7.) “On or about March 12, 2020, COLA won a motion for attorney fees and costs as the prevailing party in the Underlying Action receiving an award against Plaintiff of $454,071.50 in attorney fees and $72,874.15 in costs (the ‘Fee Award’). Plaintiff appealed the Fee Award in pro per.” (DMF 8.)

“On February 26, 2021, Plaintiff filed the Complaint against Defendants asserting causes of action for (1) Legal Malpractice, (2) Breach of Contract, and (3) Breach of Fiduciary Duty alleging that Defendants negligently handled the Underlying Action (the ‘Malpractice Action’).” (DMF 9.) “Plaintiff also alleges that Defendants are liable for dismissing the Defamation and Retaliation claims from the TAC in the Underlying Action without his consent.” (DMF 10.)

“On July 15, 2022, the Court of Appeal reversed the Fee Award holding ‘there was no prevailing party [in the Underlying Action], and neither party was entitled to recover its costs.’” (DMF 11.)

“Plaintiff in sum alleges that Defendants were negligent in ‘failing to contact and/or subpoena witnesses and documents from Plaintiff’s prospective employers demonstrating that Plaintiff was denied one or more positions because of false or misleading information provided by the Couty of Los Angeles.’” (DMF 19.)

The function of a motion for summary judgment or adjudication 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.) Code of Civil Procedure § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Defendants contend that they are entitled to summary judgment of all three causes of action raised in the complaint on the grounds that (1) Plaintiff cannot establish a triable issue of fact exists as to causation, and (2) Plaintiff cannot establish a triable issue of fact exists as to damages.

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) On a motion for summary judgment, or adjudication, a defendant need only “negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493.)

Here, the instant action is based on Defendants’ improper dismissal of the defamation and retaliation claims in the Underlying Action and for negligently representing Plaintiff as to the remaining contractual claims in the Underlying Action. (Complaint ¶¶ 15, 20, 24; DMF 19.)

“To state a cause of action for legal malpractice, a plaintiff must plead ‘(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.’ [Citation.]” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 66.) “‘Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty....’ [Citations.] [Thus,] “ ‘ “ ‘[t]he mere probability that a certain event would have happened, upon which a claim for damages is predicated, will not support the claim or furnish the foundation of an action for such damages.’ ” ’ [Citation.]” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165.) “In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) When an attorney is negligent in the prosecution or defense of a claim, this is done with the legal malpractice case-within-a-case format. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 973 [“[The legal malpractice case-within-a-case format] is properly employed as the method of proving the elements of causation and damages when the malpractice involves negligence in the prosecution or defense of a legal claim.”].)

However, “[c]ausality is normally a fact issue for the jury except in those cases where reasonable [people] cannot differ.” (Lysick v. Walcom (1968) 258 Cal.App.2d 136, 153; Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 69 [“Ordinarily, foreseeability is a question of fact for the finder of fact, but it may be decided as a question of law if under the undisputed facts there is no room for a reasonable difference of opinion.”].)

Here, Defendants contends that the entire action fails for causation because “Plaintiff cannot establish a triable issue of material fact that (a) his underlying defamation and retaliation claims could have succeeded as a matter of law, or (b) any prospective employers received false or misleading information from COLA as required to maintain the remaining breach of settlement claims.” (Motion at p.13:14-17.) As to both claims, Defendants fail to show that they are entitled to judgment as a matter of law.

Defendants fail to show that Plaintiff would have been unable – as a matter of law – to prove the defamation claim in the Underlying Action.

A defendant moving for summary judgment must show either that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) This means that if the plaintiff bears the burden of preponderance of the evidence at trial, then the defendant in a summary adjudication motion “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [the defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 (Aguilar).) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Id. at p.854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p.855.)

Here, the only evidence cited in the memorandum and separate statement for the proposition that the defamation claim in the underlying action fails as a matter of law is Plaintiff’s response to a special interrogatory and Plaintiff’s deposition regarding a ruling in the Underlying Action. In response to a special interrogatory asking for all evidence in support of the proposition that Plaintiff would have prevailed on the merits for the defamation claim in the Underlying Action, Plaintiff stated that:

[COLA] has defamed Plaintiff both by posting negative materials referencing his suspension, discipline and termination on its own internet website, as well as by directly informing Plaintiff's prospective employers and county employees of negative information concerning his discipline and discharge.

Subsequent to the execution of the Settlement Agreement, the county was required to restrict all of its communication regarding Plaintiffs termination from employment as a "resignation," and to provide a "neutral" reference with respect to questions about things such as dates of employment and job title. Thus, any other communications, other than those which indicate that Plaintiff resigned, must be regarded as false.

Whether by directly communicating negative information, or by failing to give the required neutral employment information and insinuating the existence of negative information, the County has communicated false and defamatory material concerning Plaintiff, material that directly impacts his business and professional reputation, character and employment, and which is per se defamatory. The defamatory statements/documents were published to third parties by means of posting on the internet, and by directly communicating with prospective employers.

Upon information and belief, the publication of this defamatory material was done intentionally, in retaliation for Plaintiff having filed the prior lawsuit, or in the alternative, the failure and refusal to remove the defamatory material once Plaintiff notified the county concerning its presence on the internet was willful and intentional.

(Defendants’ Compendium of Exhibits “DCE” Exh. B. at Response to Interrogatory No.11.)

Based on this response, Defendants assert that Plaintiff’s theory for defamation in the underlying action was that “[COLA] has defamed Plaintiff both by posting negative materials referencing his suspension, discipline and termination on its own internet website, as well as by directly informing Plaintiff’s prospective employers and county employees of negative information concerning his discipline and discharge.” (DCE, Exh. B. at Interrogatory No. 11; DMF 12.) Defendants further claim that this response admits that there was nothing false about COLA’s statements. (Motion at p.14: 4-7, [“First, there was nothing false about COLA’s alleged defamatory statements. ([DMF] 13.) Rather, Plaintiff wanted to hold COLA liable for ‘directly communicating negative information, or by failing to give the required neutral employment information and insinuating the existence of negative information.’ ([DMF] 13.)”].) “Defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ [Citation.]” (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970, [bold and italics added].) Thus, Defendants claim that because Plaintiff “concedes” that the alleged defamatory statements were not false, the defamation claim in the Underlying Action would have failed.

Defendants correctly note that negative information – such as COLA’s alleged defamatory statements – is not necessarily the same as false information. However, Plaintiff’s interrogatory response does not concede that COLA’s alleged defamatory statements were true. Plaintiff’s response states nothing about whether COLA’s statements were true or false but merely categorizes them as “negative.” Courts must “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Resolving doubts in favor of Plaintiff, the Court cannot construe Plaintiff’s silence as to whether the COLA’s alleged defamatory statements were false as an admission that those statements were true or that the defamation claim in the Underlying Action would have necessarily failed.

Defendants also cite to Plaintiff’s deposition testimony. Defendants contend that “the trial court in the Underlying Action ultimately ruled during motions in limine that the alleged defamatory statements were made by an independent agency (the Civil Service Commission), which was not under COLA’s control or bound by the Underlying Settlement Agreement. ([DMF] 14.)” (Motion at p.14:19-22.) However, in the portion of Plaintiff’s deposition transcript that Defendants cite, Plaintiff testified merely that a part of the alleged Defamatory statements that Plaintiff attributed to COLA were internet postings by the Civil Service Commission that the court in the Underlying Action barred from use at trial based on a ruling on a motion in limine. (DCE, Exh. A [Youssef Depo. at pp. 62:19-63:12].) Even assuming that Plaintiff’s cited deposition did show that the trial court in the Underlying Action ruled that the alleged defamatory statements made online through postings were made by an independent agency, this evidence does not fully address Plaintiff’s claim for defamation, i.e., other defamatory statements that Plaintiff attributes to COLA.

As Plaintiff’s interrogatory response notes, “[COLA] has defamed Plaintiff both by posting negative materials referencing his suspension, discipline and termination on its own internet website, as well as by directly informing Plaintiff’s prospective employers and county employees of negative information concerning his discipline and discharge.” (DCE, Exh. B. at Interrogatory No. 11, [Bold and Italics Added].) As to COLA’s direct statements to Plaintiff’s prospective employers and county employees, Defendant’s argues that these statements are not actionable as defamation because they are not written. (Motion at p.14:16-18, [“Of course, it is also true that any verbal statements where COLA supposedly ‘directly informed Plaintiff’s prospective employers’ are not actionable because defamation requires written statements.”].) Defendants have misstated the law. Defamation involves both written and spoken statements. (Civ. Code, § 44, [“Defamation is effected by either of the following: [¶] (a) Libel. [¶] (b) Slander.”]; Civ. Code, § 46, [“Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means…”].) Thus, direct oral statements by COLA could constitute defamation.

Though not raised to the underlying claim for defamation, Defendants also claim that Plaintiff has no evidence that prospective employers received false or misleading information from COLA. (Motion at pp.17:9-19:24.) However, the only evidence Defendants cite for the proposition that Plaintiff lacks this evidence in the instant action is that Plaintiff sent a few subpoenas to prospective employers at the beginning of the suit and did not appear to receive any records indicating physical documents denoting libel by COLA. (DCE Exhs. F-H; Borowski Decl. ¶¶ 8-10.) Though a lack of records by some prospective employers could indicate that Plaintiff lacks evidence that prospective employers did not receive false or misleading information from COLA, this lack of records does not definitively show that Plaintiff has no evidence and cannot reasonably obtain such evidence as required to warrant summary judgment. (Aguilar, supra, 25 Cal.4th at p.854.)

In sum, Defendants fail to identify any evidence in the separate statement affirmatively showing that Plaintiff cannot prove the alleged wrongfully dismissed claim for defamation in the Underlying Action. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, Fn. 4, [“ ‘[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’ ”].) Similarly, Defendants’ memorandum fails to cite any evidence demonstrating that Plaintiff cannot prove the alleged wrongfully dismissed claim for defamation in the Underlying Action. (See Cal. Rules of Court, Rule 3.1113(b).)^{^[1]}

As to causation, Defendants have moved only for summary judgment. Thus, a single triable issue as to causation for any cause of action requires denial of the motion. (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 497.) For the reasons explained above, Defendants fail to show that Plaintiff cannot prove that he would have prevailed as to the underlying defamation claim that Defendants dismissed before trial. Thus, Defendants fail to show that they are entitled to summary judgment based on a lack of causation.

Defendants claim that Plaintiff did not suffer any “actual loss or damages” because the award of attorneys’ fees in favor of COLA was reversed on appeal, (Defendant’s RJN Exh. 3), and Plaintiff was pro per and obtained a fee waiver in for the Appeal, (Defendant’s RJN Exhs. 4-5). However, Plaintiff’s claim for damages in the instant action was not limited to just the judgment of attorneys’ fees entered in the Underlying Action against him. As noted above, “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto, supra, 181 Cal.App.4th at p.74.) Here, the complaint sought damages “representing the general and special damages Plaintiff should have recovered, and the judgment for attorney fees and costs that was rendered against him.” (Complaint ¶ 25, [italics added].) Defendants’ evidence only addresses the damages of fees and costs rendered against Plaintiff.

As noted above, Defendants fail to show that Plaintiff would have been unable to prove the defamation claim in the Underlying Action. Defendants have failed to present any evidence showing that Plaintiff could not have recovered any damages but for Defendants conduct – such as by Defendants’ alleged dismissal of the defamation claim without approval. Accordingly, Defendants motion for summary judgment based on damages must be denied.

Based on the foregoing, Defendants Robert C. Baker, and Baker, Keener, & Nahra, LLC’s motion for summary judgment is DENIED.

[1] California Rules of Court, rule 3.1113(b) provides that “[t]he memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” The Court has “no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [where appellant's motion was supported by deficient memorandum, trial court was justified in denying the motion on procedural grounds].)

County of Los Angeles

Department 26