Judge: Martha K. Gooding, Case: 2020-01176479, Date: 2022-09-26 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant Bohm Wildish & Matsen, LLP (“Defendant”) seeks summary judgment on the First Amended Complaint (“FAC”) filed by Plaintiff Donald Hecht (“Plaintiff”), which consists of a single cause of action for legal malpractice.

Plaintiff’s claim arises out of his dissolution proceeding against his spouse, Carol Sue Johnson (“Spouse”). Plaintiff alleges he initially was represented by Phillips, Whisnant, Gazin, Gorczay & Curtin, LLP (“First Firm”), then represented by Defendant from 2/2/2018 to 10/3/2019, before being represented by new counsel in the dissolution proceedings. In the dissolution proceedings, the validity of a Post-Nuptial Agreement was in issue.

Plaintiff and Spouse had signed three pre-nuptial agreements and one post-nuptial agreement. [Bowman Decl., Exs. G and K; D’Antony Decl., Ex. P]

On March 9, 2007, Plaintiff and Spouse entered into an Amended Prenuptial Agreement (“PNA”), and both parties were represented by counsel. [Plaintiff’s NOL Exhibit 5, p.13; and D. Hecht Decl.¶4.]

After the Hechts were married, they entered into an October 6, 2014 Post-Nuptial Agreement in California, for which both Hecht and Johnson waived separate counsel. [Plaintiff’s NOL Exhibit 6, p.23; Bowman Decl. Ex. E and K.]  At the initial hearing on this Motion on September 19, 2022, all parties agreed that Exhibit 6 to the Plaintiff’s Notice of Lodgment is a true and correct copy of the Post-Nuptial Agreement.

Defendants contend both the March 2007 pre-nuptial agreement and the October 2014 post-nuptial agreement granted Spouse (Carol Sue) $10,000.00 per month in spousal support for the rest of her life, even after Plaintiff’s death, and required that Plaintiff set up an annuity administered through a will or trust to guarantee the spousal support. [SSUF No. 5; Bowman Decl. Ex E, G and K; D’Antony Decl. Ex. Q.] Plaintiff disputes this interpretation of the agreements.

Plaintiff contends that if the court found the 2014 Post-Nuptial Agreement to be unenforceable, the 2007 PNA would have become the operative marital agreement, and Plaintiff would not have been obligated to pay spousal support in any amount. [Plaintiff’s ASSUF no. 44; Blanchet Decl., ¶¶5, 6; and NOL Exhibit 5, ¶15.]

According to Plaintiff, prior to mediation he informed First Firm that he wanted to litigate the enforceability of the marital agreements. [D. Hecht Decl. ¶5; D. Hecht Depo., NOL Exhibit 8, p.56:8-12; G. Hecht Depo., NOL Exhibit 7, p.32:5-15, pp.52:24-54:14, pp.63:19-64:1.]

Nonetheless, with First Firm as counsel, Plaintiff participated in a mediation with Spouse, which resulted in the Deal Memo. The Deal Memo provides for Spouse to be paid spousal support for her entire life, even after Plaintiff dies. [Blanchet Decl., ¶8; and Plaintiff’s NOL Exhibit 11, §2a.]

Plaintiff contends the spousal support is contrary to law in that it extends beyond his death and is disproportionate to the duration of his union with Spouse. [Graybehl-D’Antony Depo., NOL Exhibit 4, p.104:12-24; and Blanchet Decl. ¶9.]

In early 2018, sometime after the conclusion of the mediation, Plaintiff discharged First Firm and hired Defendant through Sherry Graybehl D’Antony. [Bowman Decl. Ex A; See FAC ¶ 22.] “Client hires Attorneys and Attorneys accept employment to represent Client solely for the following matter(s) referred to below as “Client’s family law action”): Motion to Set Aside Deal Memo. [Plaintiff’s NOL, Exhibit 9.]

While Plaintiff was represented by Defendant, judgment was entered on 9/30/2019 on the terms set forth in the Deal Memo that had been negotiated by the First Firm, which resolved all property related claims and provided spousal support for Spouse. The negotiations and agreement resulting in the Deal Memo took place in mediation.

Plaintiff alleges Defendant’s services fell below the standard of care, by failing to properly and timely advise Plaintiff that he had a malpractice action against the First Firm, by failing to act in Plaintiff’s best interests, by negligently advising Plaintiff with respect to the Deal Memo, and by filing a motion to enforce the Deal Memo, withdrawing the motion, and then opposing Spouse’s motion to enforce the Deal Memo, which made Plaintiff’s opposition untenable.

Plaintiff alleges that, but for the claimed malpractice of Defendant, he would have suffered less or no financial harm, would not have had to pay spousal support, and would have had a viable claim for legal malpractice against the First Firm.

Defendant contends Plaintiff cannot prevail on his malpractice cause of action as it relates to an action against First Firm because evidence of what was said during the mediation that resulted in the Deal Memo is inadmissible under the mediation confidentiality statute.

Defendant contends Plaintiff cannot prevail on his cause of action as to Defendant’s handling of the motion to enforce he Deal Memo because he cannot show that but for Defendant’s actions Plaintiff would have obtained a more favorable result.

ANALYSIS:

Preliminary Issues

Initially, there was some confusion caused by mis-citation to three exhibits attached to the D’Antony Declaration (ROA #123).  The Exhibits were identified in the D’Antony Declaration as Exhibits P, Q and R – but Defendant’s Separate Statement cited only to Exhibits A, B and C to the D’Antony Declaration.  This problem has now been resolved with an Errata filed by Defendant on 9/15/2022 clarifying that The D’Antony Declaration Exhibits cited as A, B and C are correctly cited as Exhibits P, Q and R, respectively.

There also was some initial confusion regarding the filing of Exhibit Q, which is a redacted copy of the Post-Nuptial Agreement.  However, the full unredacted document was not attached to Defendant’s notice of lodging conditionally under seal and also was not the subject of a motion to seal.  This problem has now been resolved by the parties’ agreement at the September 19, 2022 hearing that Plaintiff (whose designation of the Post-Nuptial Agreement as confidential prompted Defendant’s effort to file it conditionally under seal) has already filed the unredacted Post-Nuptial Agreement in the public record in its entirety as Exhibit 6 to Plaintiff’s Notice of Lodging. Thus, there is no need for a motion to seal.

Because both parties agreed on the record at the September 19, 2022 hearing that Exhibit 6 is a true copy of the Post-Nuptial Agreement, the Court overrules Defendant’s objection to Gilliland’s authentication of the 10/6/14 post-nuptial agreement as lacking foundation/personal knowledge. [ROA #155, obj. no. 11.]  Thus, citations/references to Exhibit Q are understood as references to Exhibit 6, as they are the same document and Exhibit 6 is the unredacted version.

Request for Judicial Notice

With his Opposition, Plaintiff filed a request for judicial notice of a minute order in this case and two filings in the dissolution proceeding. See ROA #143.  The Court grants Defendant’s request to take judicial notice of these documents because they are records of a court of this state. Evid. Code, § 452, subd. (d).

Evidentiary Objections

        Plaintiff’s Evidentiary Objections

Plaintiff filed evidentiary objections with his opposition, Nos. 1-3. [ROA #149.]

No. 1 is an objection to a statement in Defendant’s separate statement. This is not a proper evidentiary objection; overruled.

No. 2 is an objection to a portion of D’Antony’s deposition testimony. (The objection does not specify where it can be found.) Overruled.

No. 3 is an objection to a portion of Plaintiff’s deposition testimony. (The objection does not specify where it can be found.) Overruled.

        Defendant’s Evidentiary Objections

Defendant filed evidentiary objections with his reply, nos. 1-39.

Objections No. 1-10 are overruled.

Objections are sustained as to Nos. 12, 14, 15, 18, 18 (there are two objections with this number), 20, 23, 24, 25, 25 (there are two objections with this number), 26, 27, 28, 29, 32, 33, and 39.

All others are overruled.

Basic Law for Summary Judgment/Adjudication

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Code Civ. Proc. § 437c(p)(2). A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law.  Brantley v. Pisaro (1996) 42 Cal. App. 4th 1591, 1597. Once a defendant meets that burden, the burden shifts to the plaintiff to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. Id.

Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. Villacres v. ABM Industries, Inc. (2010) 189 Cal. App. 4th 562, 575. To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue.  Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 163. Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. Doe v. Salesian Society (2008) 159 Cal. App. 4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal. App. 4th 493, 510. The moving party's affidavits are strictly construed while those of the opposing party are liberally construed. Villacres v. ABM Industries, Inc., 189 Cal. App. 4th at 575. The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Id.

Although the same standards for admissibility govern supporting and opposing affidavits (CCP § 437c(d)), the opposition declarations are liberally construed while the moving party's evidence is strictly scrutinized. Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 768. Even so, the opposing party's burden of production is not satisfied by declarations containing inadmissible evidence (e.g., hearsay or conclusions). See Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal. App. 3d 476, 483; Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App. 4th 755, 761 (only admissible evidence in opposing declarations liberally construed in deciding whether there is a triable issue).

Application with Substantive Law

The elements of professional/legal malpractice are, “(1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; [] (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage.” Blanks v. Seyfarth Shaw LLP (2009) 171 Cal. App. 4th 336, 356–57.

Plaintiff’s claim for legal malpractice is based on (i) his allegation of malpractice by First Firm and (ii) his allegation of malpractice by Defendant. First, Plaintiff alleges that he wanted to test the validity of the pre- and post-nuptial agreements at trial but was persuaded by the First Firm to enter into the Deal Memo, which provided for Spouse to receive spousal support payments for her entire life (including after Plaintiff’s death), without being advised that absent his agreement the court could not award spousal payments continuing after Plaintiff’s death. Second, Plaintiff alleges that Defendant failed to correctly advise him about the statute of limitations for a malpractice action against First Firm, so the period passed without him filing such a claim.

Plaintiff contends that but for First Firm’s failure to meet the standard of care he would not have had to pay as much to spouse, especially he would not have had to pay lifetime spousal support. [FAC ¶ 40.] And but for Defendant’s failure to meet the standard of care, he would have gotten out from under the Deal Memo and/or would have had a claim for legal malpractice against First Firm. [FAC ¶¶ 40-42.]

In legal malpractice claims, whether a plaintiff alleges transactional malpractice or litigation malpractice, the plaintiff must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result. Viner v. Sweet (2003) 30 Cal.4th 1232, 1244. The crucial causation inquiry is what would have happened if the defendant attorney had not been negligent. Id. at 1242. The plaintiff is not required to prove causation for legal malpractice with absolutely certainty, but with evidence that provides a reasonable basis for the conclusion. Id. at 1243. Causation is a question of fact for the jury. Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 971.

Plaintiff’s legal malpractice theory against Defendant involves “a case within a case within a case” because it requires Plaintiff to prove not only that Defendant committed malpractice in allegedly negligently advising Plaintiff as to the statute of limitations for a claim of legal malpractice against First Firm, but also that, had Defendant properly advised Plaintiff about the statute of limitations, Plaintiff would have timely sued First Firm for malpractice and would have prevailed in that action. This, in turn, requires Plaintiff to demonstrate not only that First Firm breached its duty to Plaintiff by persuading him to agree to the Deal Memo, but also that, but for First Firm’s alleged negligence, Plaintiff would have prevailed as to Spouse’s demand for lifetime spousal support.

Defendant contends Plaintiff cannot show causation, that is, that any failure by it caused Plaintiff loss. First, Defendant argues Plaintiff cannot show professional negligence by First Firm because evidence of how the Deal Memo came to be agreed upon during mediation is inadmissible under the mediation confidentiality statute. Evid. Code § 1119. Second, Defendant contends Plaintiff cannot show he would have obtained a more favorable result “but for” Defendant’s alleged negligence.

        Plaintiff’s Claim about First Firm’s Negligence

Plaintiff’s first argument focuses on the inadmissibility of evidence regarding statements made at mediation. Evidence Code section 1119 provides as follows:

“Except as otherwise provided in this chapter:

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,

is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”

Evidence Code section 1122 provides as follows:

“(a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if any of the following conditions are satisfied:

(1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing.

(2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.

(3) The communication, document, or writing is related to an attorney's compliance with the requirements described in Section 1129 and does not disclose anything said or done or any admission made in the course of the mediation, in which case the communication, document, or writing may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.

(b) For purposes of subdivision (a), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement also binds any other person described in subdivision (b) of Section 1115.”

The mediation confidentiality statutes apply to all communications, negotiations, or settlement discussions for the purpose of, in the course of, or pursuant to a “mediation” or a “mediation consultation.” The principal confidentiality provision at issue in this case is section 1119. Subdivision (a) of that section provides: “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” Subdivision (c) states: “All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”

The purpose of section 1119 is to encourage “the resolution of disputes by means short of litigation.” Cassel v. Superior Court (2011) 51 Cal.4th 113, 132. Section 1119 applies in equal force during and after a mediation, and “prohibits any person, mediator and participants alike, from revealing any written or oral communication made during mediation.” Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, 13; Amis v. Greenberg Traurig LLP (2015) 235 Cal. App. 4th 331, 338 (“Even after mediation ends, communications and writings protected by the statutes are to remain confidential. (§ 1126.)”).

An unavoidable consequence of the confidentiality provisions is the increased difficulty of proving attorney malpractice in the mediation context. In Cassel, the leading case on this subject, the plaintiff sued his former attorneys for alleged malpractice in a prior mediation. 51 Cal.4th at 118. The defendants moved to exclude evidence of all confidential communications made during mediation. (§ 1119.) That motion was granted. The plaintiff petitioned for a writ of mandate, which the appellate court granted. The Supreme Court reversed, holding that the plain terms of the mediation confidentiality statutes must govern, “even though they may compromise petitioner's ability to prove his claim of legal malpractice. [Citations.]” Cassel, 51 Cal.4th at 118–19.

As Cassel explained, the confidentiality provisions were designed “to provide maximum protection for the privacy of communications in the mediation context. A principal purpose is to assure prospective participants that their interests will not be damaged, first, by attempting this alternative means of resolution, and then, once mediation is chosen, by making and communicating the candid disclosures and assessments that are most likely to produce a fair and reasonable mediation settlement.” 51 Cal.4th at 132–33.

A confidential communication made during mediation will remain private unless all participants in the communication agree to its disclosure. Cassel, supra, 51 Cal.4th at 133. “[T]here is no ‘attorney malpractice’ exception to mediation confidentiality....” Ibid. “ ‘[I]f an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts. [Citation.]’ ” Ibid., quoting Wimsatt v. Superior Court (2007) 152 Cal. App. 4th 137, 163.

The appellate court reached the same conclusion in Amis, supra, 235 Cal. App. 4th 331. In that case, the plaintiff sued his former attorneys for alleged malpractice in an underlying mediation. The defendants successfully moved for summary judgment based on the inadmissibility of confidential communications made during mediation. In affirming the judgment, the appellate court noted the outcome was “dictated” by Cassel. 235 Cal. App. 4th at 339. Even though mediation confidentiality “may hinder a client's ability to prove a legal malpractice claim against his or her lawyers,” the judiciary has “no authority to craft its own exceptions to the mediation confidentiality statutes, ‘even where the equities appear[ ] to favor them.’ [Citation.]” Ibid.

Here, Plaintiff argues Defendant does not have standing to raise the mediation “privilege” since it was not one of the persons at the mediation. He also appears to argue that the “privilege” was waived, or at least that Defendant is estopped from raising it, because the question of what happened during the mediation was thoroughly explored during discovery.

But by their terms the mediation confidentiality statutes do not create a privilege akin to the attorney-client privilege; they create a rule both of confidentiality and inadmissibility. It is not a question of who has standing to assert a privilege. Any litigant may raise the issue of what evidence is admissible in the proceeding.

Nor does implied waiver, in the absence of compliance with section 1122, or estoppel apply. The California Supreme Court addressed this issue in Simmons v. Ghaderi (2008) 44 Cal.4th 570, finding neither implied waiver nor estoppel apply to mediation confidentiality. Rather, the only exceptions are those provided by statute. 44 Cal.4th 570, 577, 587-589.

In sum, no evidence of what was said at the mediation that resulted in the Deal Memo is admissible to prove Plaintiff’s malpractice claims.

        Evidence of First Firm Malpractice Outside of Mediation

Plaintiff contends he can prove First Firm’s malpractice without evidence of what was said at mediation. Plaintiff points to the terms of the Deal Memo itself and the declaration of his expert witness, Sharon Blanchet, who opines that, given the existing pre and post-nuptial agreements, the Deal Memo falls below the standard of care.  Ms. Blanchet opines:

5. For a number of reasons, some of which turned out to be untrue, Ms. Johnson contested the validity of the 2014 Post-Nuptial Agreement. Based on my years of experience and expert opinion, I believe the Agreement was enforceable in California. However, assuming arguendo it was not, the March 9, 2007 Amended Pre-Nuptial Agreement (NOL, Exhibit 5) would have become the operative agreement for the dissolution of the Hecht marriage. In the execution of this Agreement, both parties were represented by separate counsel, and there is no reason to believe the Court would have found this Agreement to be unenforceable.

6. The March 2007 Amended Pre-Nuptial Agreement waives the parties’ right to alimony or spousal support or maintenance (NOL, Exhibit 5, ¶15b). Pursuant to this agreement, Ms. Johnson was not entitled to any spousal support.

7. At paragraph 38, the 2007 Pre-Nuptial Agreement contains a provision in which Dr. Hecht’s estate will provide for Ms. Johnson, if and only if “the parties are living together as husband and wife, and not divorcing or divorced, at the time of Donald’s death.” Given the parties were divorcing, this provision has no applicability to the Hecht-Johnson family law matter.

8. On the other hand, the October 12, 2017 (NOL, Exhibit 11) Deal Memo at issue in this case obligates Dr. Hecht to pay Ms. Johnson $20,000 per month commencing January 1, 2018 through December 2027. (NOL Exhibit 11, §2a) Beginning January 1, 2028, Dr. Hecht is required to pay Ms. Johnson $10,000 per month for the rest of her life. Based on actuarial tables, it is estimated the Deal Memo obligates Dr. Hecht to pay Ms. Johnson a total amount of spousal support of approximately $2,860,000.00, in addition to the significant award of Dr. Hecht’s separate property she received. (Gilliland Decl. ¶4)

9. In my expert opinion, section 2a of the Deal Memo is contrary to California law and unreasonable based on the circumstances of this case. For example, a California court cannot order a spousal support obligation to extend beyond the obligor’s death. Cal. Fam. Code §4337. Additionally, as referenced in paragraph 2 above, the Hecht-Johnson marriage was considered “short-term” in California. Cal. Fam. Code §4336(b). Typically (and pursuant to the 2014 Post-Nuptial Agreement), this means Dr. Hecht may have been obligated to pay Ms. Johnson for half the term of the marriage, i.e. four years, eleven months, at most. And finally, depending on the assets Ms. Johnson may have received had the issue of spousal support gone to trial, it is very likely she would not have received an award of spousal support at all pursuant to California Family Law Code section 4332, which states: In an original or modification proceedings, where there are no children, and a party has or acquires a separate estate . . . sufficient for the party’s proper support, no support shall be ordered or continued against the other party.

10. Given the disparity between the marital agreements and the Deal Memo, coupled with the inconsistencies between California law and the Deal Memo, in my expert opinion, the Deal Memo, on its face, falls below the standard of care and constitutes malpractice.

[Blanchet Decl., ¶¶ 5-10.]

Defendant argues that the Deal Memo alone is not enough and that conduct by counsel also must be shown. But the Deal Memo is the result of counsel’s conduct representing Plaintiff. And Plaintiff effectively argues the deal terms are so bad on their face that a legal practitioner with expertise in this area of law can conclude the legal work behind it was insufficient.

Defendant also attacks the sufficiency of the Blanchet Declaration to show malpractice. But on a summary judgment motion, opposition declarations are liberally construed. Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 768

On this evidence, and based on the Court’s overruling of the objection to the Blanchett Declaration, the Court concludes there is a triable issue of fact whether Plaintiff can show that First Firm breached its duty to Plaintiff by having him to agree to the Deal Memo.

        Plaintiff’s Claim about Defendant’s Negligence

As to Defendant’s own representation of Plaintiff, the question is whether there is a triable issue of fact whether (1) Defendant failed to advise Plaintiff properly as to a potential malpractice claim against First Firm and/or (2) Defendant mishandled the motion to confirm/set aside the Deal Memo. If so, then the question is whether there is a triable issue of fact that this caused Plaintiff damages.

Issue (1)

Defendant contends Plaintiff did not retain it to advise him about pursuing a legal malpractice action against First Firm. [Bowman Decl. Ex C; See Donald Hecht Depo p. 65:10-67:15.] And D’Antony testified at her deposition that Plaintiff did not want to pursue a claim for legal malpractice against his former counsel. [Bowman Decl. Ex E; See Depo of Graybehl-D’Antony 94:15-25.]

According to Plaintiff, however, D’Antony offered him advice regarding a possible malpractice action, and he relied on it.  [See Hecht Decl., ¶ 9.]

As a result of this evidence, there is a triable issue of fact as to Defendant’s advice to Plaintiff regarding a potential malpractice action, and the adequacy of that advice.

With the triable issue of fact above regarding First Firm negligence, this amounts to a triable issue of fact regarding Defendant negligence.  

Issue (2)

Given the conclusion above, Issue (2) need not be addressed.

Accordingly, the Motion for Summary Judgment is DENIED.

Plaintiff is ordered to give notice of this order, unless all parties waive notice at the hearing.