Judge H. Jay Ford, III, Case SC126362 2022-12-06 Tentative Ruling

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SUBJECT: MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY: Defendant/X-Complainant Keith Fink and Associates

RESP. PARTY: Plaintiff/X-Defendant Claudia Finato

TENTATIVE RULING

Defendants Keith A. Fink, Keith A. Fink & Associates and Sarah Hernandez’s Motion for Summary Adjudication (MSA) is DENIED. Defendants’ Request for Judicial Notice (RJN) is GRANTED. Plaintiffs’ objection to the RJN is OVERRULED.

I. Defendants fail to either negate an element of Plaintiffs’ causes of action or demonstrate that Plaintiff lacks evidence to support her claims

Defendants fail to satisfy their burden as moving party on summary adjudication. Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” See Code of Civil Procedure §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. See Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.

Defendants rely on the following to satisfy their burden as moving party: (1) the FAC; (2) Plaintiff’s 3-28-13 Declaration in BC468840; (3) Finato’s Ex Parte Application to Enforce Settlement filed in BC468840 filed on 10-12-15; (4) Finato’s 664.6 Motion to Enforce Settlement; (5) Defendants’ Notice of Ruling on Finato’s Motion to Enforce Settlement Agreement filed in BC468840 filed on 6-27-16; (6) Declaration of Nicolette Glazer filed on 1-5-17 in SC126362; (7) Declaration of C. Finato filed in CACD Case No. 16-6713-RGK on 9-9-17; (8) Transcript from CACD Case No. 16-6713-RGK of Claudio Finato’s partial testimony; (9) Defendants’ Opposition to Request for Entry of Default in BC468840 filed on 12-6-16.

None of this evidence negates Plaintiff’s FAC allegations. Defendants’ evidence therefore neither negates an essential element of Plaintiff’s causes of action, nor does the evidence establish that Plaintiff lacks evidence to support her claims.

Defendants’ MSA is based entirely on the FAC and their arguments attack the sufficiency of the pleading. Defendants have already raised the arguments here in prior demurrers, including the SOL argument. The Court overruled each of these demurrers. See Minute Order Overruling Demurrer to FAC dated 6-7-22; Minute Order dated 1-20-17 overruling Demurrer to 1^st through 3^rd causes of action in Complaint.

II. Defendants fail to submit any expert testimony to negate Plaintiff’s allegations of legal malpractice or any authority holding that each and every wrongful act is not malpractice as an issue of law (Issues 1, 5, and 7)

“The general rule is that expert evidence is required to establish legal malpractice…[¶] There is an exception when the alleged malpractice is so utterly egregious and obvious that no expert testimony is needed.” O'Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 236–237. There is “a high standard for legal malpractice matters that may bypass the need for expert testimony on the standard of care. The is exception only applies to malpractice that is ‘so clear’ as to be unmistakable, or obvious malpractice resulting from an utter failure to undertake ‘basic research.’” Id. at 238 (expert testimony was required to establish standard of care in legal malpractice action based on how long witness was examined, allowing party to testify by phone, inconsistencies in declaration and need to explain apparent forgeries; such acts were “judgment calls that qualify as neither unmistakable malpractice or a lack of basic research).

Defendants did not submit any expert evidence regarding Plaintiff’s legal malpractice allegations. Defendants also fail to cite any case law holding that none of the numerous acts alleged by Plaintiff do not qualify as malpractice as an issue of law. Defendants also fail to establish that the alleged wrongful acts are unmistakably or obvious malpractice. The failure to submit any expert evidence is therefore fatal to Defendants’ MSA on Issues 1, 5 and 7, which are all based on Plaintiff’s allegations of legal malpractice.

III. Defendants’ fail to establish as an issue of law that nothing they did harmed Plaintiff or caused Plaintiff’s harm (Issue Nos. 2 and 3)

Defendants fail to negate Plaintiff’s allegations of harm or causation. Defendants argue their actions could not have harmed Plaintiff, because they ceased representing her in 2014 and she did not suffer any harm from Defendants’ alleged malpractice until 7-17-16, when the misconduct was actualized. See Motion, 13:13-20. Defendants’ statement concedes that Plaintiff suffered harm on 7-17-16 as a result of Defendants’ alleged malpractice.

The Court of Appeals has already discarded of Defendants’ arguments that any claim of harm based on the 7-17-16 Order is based on Defendants’ filing of a Notice of Lien or their opposition to the 664.6 Motion: “Rather, plaintiff alleges that because she opted out of the class settlement, the trial court ruled she was no longer party to any actions against LABite, and therefore could not enforce a settlement of her individual claims either. This alleged reason to deny enforcement was independent of the filing of the notice of lien. The cause of plaintiff's alleged injuries, therefore, was not only the filing of the notice of lien, but defendants’ alleged malpractice and other breaches that led to her opting out of the class settlement. As alleged by plaintiff, that injury did not manifest until the trial court declined to enforce her settlement with LABite.” Finato v. Keith A. Fink & Associates (2021) 68 Cal.App.5th 136, 152.

Defendants fail to present any evidence negating Plaintiff’s allegation that Defendants’ alleged malpractice caused the trial court to deny her CCP §664.6 motion. Plaintiff alleges that Defendants’ malpractice forced Plaintiff to opt out of the class, resulted in dismissal of Plaintiff’s personal claims and resulted in Plaintiff’s loss of her party status in the underlying LABite class action. Defendants fail to establish as an issue of law that the trial court would have denied Plaintiff’s 664.6 motion, even if Defendants had not committed these acts of malpractice.

“Because causation is a question of fact for the jury, it ordinarily cannot be resolved on summary judgment. In legal malpractice claims, the absence of causation may be decided on summary judgment only if, under undisputed facts, there is no room for a reasonable difference of opinion.” Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1583. Defendants have not established that reasonable minds could only conclude that nothing they did caused Plaintiff’s alleged injury.

IV. Defendants already raised the arguments here regarding SOL under CCP §340.6 and they were overruled (Issue 4)

Defendants raise no new arguments regarding SOL under CCP §340.6. Defendants raised this argument once in connection with their demurrer to the original complaint and again in their demurrer to the FAC. The Court overruled the argument both times. Defendants do not submit any evidence negating the delayed discovery allegations or allegations of continuing wrongdoing in 2015. See Minute Order dated 6-7-22 on Demurrer to FAC; Minute Order dated 1-20-17 on Demurrer to Complaint.

V. Plaintiff does not name Hernandez or Fink in the Breach of Contract cause of action

Neither Hernandez nor Fink are named in the 3^rd c/a for breach of contract. As such, the fact that neither Hernandez nor Fink contracted with Plaintiff is immaterial.

VI. Defendants fail to establish that the declaratory relief action is improper as an issue of law

Defendants fail to negate any element of a declaratory relief claim. The Court also rejected Defendants’ argument that the declaratory relief claim is improperly duplicative and unnecessary. See Minute Order dated 1-20-17.