Judge Matthew C. Braner, Case Number: 37-2022-00027093-CU-PN-CTL, Date: 2024-05-24 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2022-00027093-CU-PN-CTL, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 23, 2024

05/24/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Professional Negligence Summary Judgment / Summary Adjudication (Civil) 37-2022-00027093-CU-PN-CTL MARTELL VS EMBRY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Embry Family Law PC and Ben Embry, Esq.'s motion for summary judgment, or in the alternative, summary adjudication, is DENIED.

Preliminary Matters Plaintiff's requests for judicial notice of Exhibits 1 and 7 are granted. Although the Court may take judicial notice of the existence of court filings, it cannot accept the truth of their contents except for documents such as orders. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) '[A]ll written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.' (Cal. Rules of Court, rule 3.1354(b).) The court declines to rule on any objections Plaintiff inserted in his response to Defendants' separate statement but did not separately file in compliance with the Rules of Court.

The court need only rule on those objections it deems material to its disposition of the motion. (Code Civ.

Proc., � 437c(q).) Here, Defendants' objections to the evidence attached to Plaintiff's Notice of Lodgment are overruled. Defendants' objections to the declarations of Laura L. Furness and Omar Palacio are overruled.

Defendants filed a reply separate statement, and '[t]here is no provision in the statute for this.' (Nazir v. United Airlines (2009) 178 Cal.App.4th 243, 252; see also Cal. R. Ct., rule 3.1350 [listing the documents for summary judgment motions].) As such, the court declines to consider the reply separate statement.

Summary Judgment Summary judgment is appropriate when all the papers submitted by the parties show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code of Civ. Proc., � 437c, subd. (c).) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant can meet that burden by showing one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., � 437c, subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact as to the cause of action or affirmative defense. (Code of Civ. Proc., � 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851.) If the Calendar No.: Event ID: TENTATIVE RULINGS

3034989 19 CASE NUMBER: CASE TITLE: MARTELL VS EMBRY [IMAGED] 37-2022-00027093-CU-PN-CTL plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying facts in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850.) The court must strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-39), and may not weigh the evidence or conflicting inferences. (Aguilar, supra, 25 Cal.4th at p. 856.) Plaintiff's operative Complaint alleges three causes of action against Defendants for Legal Malpractice, Breach of Contract, and Breach of Fiduciary Duty. (ROA 1.) Defendants contend they are entitled to summary judgment on all three causes of action on the grounds that Plaintiff cannot establish that any of Defendants' alleged negligence caused Plaintiff any harm, and Plaintiff cannot prove he could have obtained a better outcome. Defendants dedicate most of their briefing on the causation element of the legal malpractice claim and appear to contend that Plaintiff's other claims fail for similar reasons.

To succeed on a legal malpractice claim, 'the plaintiff must generally establish '(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.'' (O'Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 235.) '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, citations omitted.) In general, a legal malpractice case requires expert opinion, particularly with respect to duty, breach, and causation. (O'Shea, supra, 64 Cal.App.5th at pp. 236-39.) 'As a general rule, the testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff's damages.' (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542; see Unigard Ins. Group v. O'Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1238-1239.) First, it is questionable whether Defendants met their burden of production, given the fact-intensive nature of legal malpractice proceedings and the usual requirement for expert opinion, particularly to establish the elements of duty, breach, and causation. Defendants chose not to present expert evidence, which plainly impacted Plaintiff's corresponding decision not to present expert evidence. At least with respect to the elements of duty, breach, and causation, the court cannot overlook the absence of expert evidence. Accordingly, Defendants have failed to meet their burden with respect to these elements.

Second, ' '[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed [together with] a reference to the supporting evidence.' ' (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168, emphasis original and citations omitted.) Even if the court overlooks the absence of expert testimony, Defendants have failed to set forth 'all material facts contended to be undisputed together with supporting evidence.' (Code of Civ. Proc., � 437c, subd. (b)(1).) Many of the facts in Defendants' supporting memorandum (including facts on the underlying proceedings and facts supporting Defendants' arguments on causation) are not set forth in Defendants' separate statement. Consequently, many of Defendants' undisputed material facts are not supported with citations to the evidence. For instance, Defendants' UMF No. 6 states: 'Mr. Martell had Calendar No.: Event ID: TENTATIVE RULINGS

3034989 19 CASE NUMBER: CASE TITLE: MARTELL VS EMBRY [IMAGED] 37-2022-00027093-CU-PN-CTL an extensive history of domestic violence and alcohol abuse. Filing an appeal would not have changed those facts which led to his ultimate termination of parental rights.' Yet Defendants did not set forth this 'extensive history' in the separate statement or specifically cite by page and line number the portions of the cited exhibits that support the conclusions in UMF No. 6. Similarly, Defendants' UMF No. 8 states that Plaintiff abandoned his child 'in accordance with Family Code section 7822,' but the only evidence in cited in support of this separate statement of fact is a brief submitted by the child's mother in the underlying proceedings. Furthermore, a majority of the 37 exhibits offered in support of Defendants' motion are cited in the supporting memorandum but are not referenced or relied upon in the separate statement. Additionally, Defendants cite to Plaintiff's discovery responses to Special Interrogatories, Set One in their supporting memorandum but fail to set forth the text of Plaintiff's responses in the separate statement or provide a copy of the responses. Defendants' separate statement thus violates California Rule of Court 3.1350(d)(1)(B), which requires that a separate statement separately identify '[e]ach supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.' Because summary judgment is such a drastic remedy, it is important 'that all of the procedural requirements for the granting of such a motion be satisfied...' (See Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 262.) The insufficiencies of Defendants' separate statement thus also warrant denial of the motion for summary judgment. (See Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865 [315 Cal.Rptr.3d 842, 852], review filed (Jan. 16, 2024) ['Trial courts [fn] should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement'].) Third, even if Defendants met their initial burden notwithstanding the above deficiencies, Plaintiff has presented sufficient evidence to raise a triable issue of material fact concerning at least one of the factual bases for his legal malpractice claim; namely, the failure to timely file a notice of appeal of the order granting the petition to declare Plaintiff's minor child free from his parental custody and control, and the failure to advise of or address the late-filed notice.

Accordingly, Defendants' motion for summary judgment is denied.

Summary Adjudication Summary adjudication as to one or more causes of action is appropriate if 'the cause of action has no merit' and if adjudication will completely dispose of the cause of action. (Code Civ. Proc., � 437c, subd.

(f)(1).) A party may adjudicate a cause of action, affirmative defense, claim for punitive damages or an issue of duty. (Ibid.) A defendant who moves for summary adjudication has the initial burden of showing the alleged cause of action is without merit. (Ibid.; Aguilar, supra, 25 Cal.4th at pp. 843.) A defendant can meet that burden by showing one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., � 437c, subd. (p)(2).) Ground for Adjudication No. 1 (Summary Judgment on Plaintiff's Three Causes of Action) Defendants' first noticed ground for adjudication provides: 'Defendants are entitled to summary judgment on all three causes of action in Plaintiffs' Complaint because Plaintiffs cannot establish that any alleged negligence of Defendants caused them any harm where they cannot prove that they could have obtained a better outcome.' (ROA 27, at p. 2:1-4.) Defendants' first noticed ground for adjudication appears to conflate summary judgment as grounds for summary adjudication and improperly seeks multiple grounds for summary adjudication in a single noticed issue. For the reasons set forth above, Defendants' motion for summary adjudication for each of Plaintiff's three causes of action is denied.

Ground for Adjudication No. 2 (Emotional Distress Damages) Defendants seek summary adjudication on Plaintiff's claim for emotional distress damages, as 'such damages are not recoverable in this matter based on the allegations in the complaint and lack of Calendar No.: Event ID: TENTATIVE RULINGS

3034989 19 CASE NUMBER: CASE TITLE: MARTELL VS EMBRY [IMAGED] 37-2022-00027093-CU-PN-CTL recoverability of these damages in a claim against an attorney.' (ROA 27, at p. 2:5-8.) Although Code of Civil Procedure � 437c(f)(1) allows a party to move for summary adjudication as to 'one or more claims for damages,' additional language in the statute limits this section to punitive damages under Civil Code � 3294. (Code Civ. Proc., � 437c(f)(1) ['if the party contends . . . that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code . . .'].) 'Code of Civil Procedure section 437c, subdivision (f)(1), does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action.' (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 422.) '[I]n order to give effect to the first sentence of subdivision (f)(1), the second sentence must also be read in conjunction with the first sentence, so that the reference to 'a claim for damages' must be qualified as referring to the previously defined claim for punitive damages.) (Id. at p. 421, emphasis added.) Defendants have not shown summary adjudication of Plaintiff's emotional distress damages (an issue of non-punitive damages) is proper under the statute or would dispose of any cause of action. Additionally, Defendants have not shown emotional distress damages are not recoverable under the circumstances alleged in this action.

(See Holliday v. Jones (1989) 215 Cal.App.3d 102, 119 [emotional distress recoverable in a legal malpractice case where harm caused to the plaintiff's liberty interest]; R.M. v. T.A. (2015) 233 Cal.App.4th 760, 772 [parents have a fundamental liberty interest in the care, custody, and control of their children].) Accordingly, Defendants' motion for summary adjudication is denied on this ground.

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