Judge: Michael D. Washington, Case: 37-2022-00028549-CU-PN-NC, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 27, 2024

06/28/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  Professional Negligence Summary Judgment / Summary Adjudication (Civil) 37-2022-00028549-CU-PN-NC SIMON VS HALE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice - Other, 03/15/2024

There is some confusion in the record as to precisely which motions are on-calendar for hearing.

Because certain procedural issues arise with the formal notice of the motions, the Court will address the three motions that are, at least arguably, on-calendar in the following order: --Motion for Summary Judgment (by plaintiff Simon against defendant McIntosh) --Motion for Summary Judgment/Adjudication (by defendant Martin against plaintiff Simon) --Motion for Summary Judgment (by plaintiff Simon against defendant Martin) RULING ON MOTION AGAINST ATTORNEY McINTOSH (by Plaintiff) The Motion for Summary Judgment brought by plaintiff Phillip Simon (Plaintiff or Mr. Simon) against defendant Alexandra McIntosh (Attorney McIntosh) is DENIED on procedural grounds.

It appears that Plaintiff filed two documents, labeled as 'motions for summary judgment,' on September 5, 2023. (ROA 153-154.) Both of those documents refer, in the body of the document, to defendant Daniel Martin (Attorney Martin). While it appears that there may have been some clerical error in the filing – as filing two identical motions as to Attorney Martin and none as to Attorney McIntosh was presumably in error – the result is that, ultimately, there are no papers supporting a motion for summary judgment against Attorney McIntosh.

The Court further notes that that original filing from September 5, 2023 ultimately never came on for a hearing because Plaintiff filed for bankruptcy and a stay was imposed in this case that took all motions off-calendar. (ROA 195.) Since that time, though it appears that the stay was lifted on or about March 5, 2024, Plaintiff did not re-file any moving papers for the 'motion for summary judgment' as to Attorney McIntosh. Moreover, while there was a Status Conference in this case in which other parties stipulated to set summary judgment motion(s), Attorney McIntosh did not make an appearance at that hearing. (ROA 222.) Though it appears that Attorney McIntosh was given notice of the Minutes from that hearing, she did not, herself, stipulate to having a motion for summary judgment against her heard on shortened time, and the notice that was served on her was technically too late to provide sufficient statutory notice.

As an additional point of clarification, the Minutes from the Status Conference indicate that '[t]he parties agree to all the calendared motions being heard on the same date.' (ROA 222.) There is a point of unclarity within that agreement because of the word 'calendared.' At the time, there was only one motion that was 'calendared' – the Motion for Summary Judgment/Adjudication brought by Attorney Calendar No.: Event ID:  TENTATIVE RULINGS

3115912 CASE NUMBER: CASE TITLE:  SIMON VS HALE [IMAGED]  37-2022-00028549-CU-PN-NC Martin against Plaintiff. (ROA 225.) As such, given the harsh result that may result from a failure to oppose the motion, the Court is not inclined to summarily grant the motion against Attorney McIntosh as 'unopposed' when: (1) Attorney McIntosh was not present at the hearing where the parties stipulated to a shorter time for hearing other motion(s) for summary judgment, (2) Attorney McIntosh did not receive notice of the hearing date in a manner that gave her the full statutory notice to respond (75 days for the motion, plus 2 days for electronic service), and (3) the document that was served on Attorney McIntosh giving her notice of what was done at the Status Conference is unclear in that agreeing to move 'calendared' motions to a particular date did not necessarily encompass motions that had been previously-set but that had come off-calendar due to Plaintiff's filing for bankruptcy.

For all of these reasons, the 'motion for summary judgment' that presumably would have been against Attorney McIntosh is denied on procedural grounds.

RULING ON MOTION AGAINST SIMON (by Attorney Martin) The Motion for Summary Judgment/Adjudication brought by Attorney Martin is DENIED without prejudice.

The Request for Judicial Notice brought by Attorney Martin is GRANTED pursuant to Evidence Code § 451, et seq. Additionally, on its own motion, the Court takes judicial notice of the entire publicly-available record and files in the related cases of: --Simon v. Watts (San Diego Superior Court No. 22-37519) (the Partition Action) --Simon v. Simon (San Diego Superior Court No. 21FL004274N) (the Family Law Case) --Simon v. Simon (Fourth District Court of Appeal No. D081446) (appeal of the Family Law Case) --Frederick D Hale and Associates v. Simon (21-51859) (Attorney Fees Collection Case) --Watts v. Simon-Williams (21FDV03699N) --Watts v. Simon-Williams (21EPO008321N) --Simon v. Watts (21FDV03752N) --Simon v. Jackson (21FDV03754N) --Simon v. Simon-Watts (21FL001403N) Background The instant action is for attorney malpractice. The malpractice is alleged to have occurred in an underlying marital dissolution case. For clarity, there are multiple attorneys who appear to have represented Mr. Simon in the underlying marital dissolution case and their timing and involvement in the family law case appears to break down as follows: --first attorney: Attorney Hale (fired July 2021) --second attorney: Attorney McIntosh (hired July 2021), who sub-contracted with Attorney Elliot --third attorney: Attorney Martin (hired March 2022) The instant Motion for Summary Judgment/Adjudication is brought by that third attorney – Attorney Martin.

Given the length, complexity, and volume of the various cases that revolve around the underlying dispute, the Court will make an effort to summarize what is presently at issue with the acknowledgment that the history here is so large that not all details can be included in any reasonable summary.

Based on knowledge of the Partition Action, which was a civil case that was assigned to this very Department, as well as the record and files in the Family Law Case, it appears that Plaintiff and his wife were involved in marital dissolution, but that there was some dispute regarding their assets and living situation. Specifically, it appears that in order to purchase a home, Plaintiff was able to utilize his status as a veteran to qualify for special financing and Plaintiff's wife's cousin was able to bring additional capital to the transaction. It appears that the wife specifically exempted herself from any claim to Calendar No.: Event ID:  TENTATIVE RULINGS

3115912 CASE NUMBER: CASE TITLE:  SIMON VS HALE [IMAGED]  37-2022-00028549-CU-PN-NC community property in the home given that ownership was to be divided up between her husband and her cousin. All three parties appear to have lived in the home (along with certain children of Plaintiff and his wife), such that, when the husband and wife reached the point of seeking marital dissolution, the status of diving up interests in the home became an issue – not just with regard to addressing marital property, but also with regard to where the couple's children might reside given that there were certain efforts at restraining orders against parties who lived together in a home.

It appears that the cousin's interest in the home was able to be 'roped in' to the marital dissolution case between the husband and wife, and it further appears that that procedural twist was one that the husband, Plaintiff herein, did not welcome as it was his strategic preference to litigate against the wife's cousin independently in civil court, which is what led to the Partition Action that was assigned to this Department.

One of the points of contention now being addressed by way of the instant Motion for Summary Judgment/Adjudication brought by the third attorney to represent Plaintiff in that underlying Family Law Case has to do with speed – i.e. Plaintiff claims that his third attorney, Attorney Martin, allowed multiple continuances in the underlying Family Law Case (or at least failed to fight the continuances that the family court ultimately issued), and it appears, in part, that some of Plaintiff's strategic motivation was to move the proceedings along with regard to his wife before issues with the cousin could complicate the case. It further appears from the briefing that Plaintiff took significant issue with the legal advice he was receiving from Attorney Martin regarding moving out of the home – with Attorney Martin encouraging Plaintiff to move out and Plaintiff steadfastly remaining in the home. As a final point of contention, it appears that once Plaintiff fired Attorney Martin, Plaintiff claims that Attorney Martin failed to turn-over the legal work that Attorney Marin had been doing, which thereby hamstrung Plaintiff as his took over the day-to-day litigation of his case in pro per.

Attorney Martin makes the point, in his briefing for the instant motion, that he secured a stipulation of all parties in the underlying Family Law Case that resulted in the appraised rate of the property at issue being raised from $1,850,000.00 (which had been the rate about one year prior) to $2,600,000.00.

Attorney Martin's position is that this strategic choice significantly raised the value of Plaintiff's ownership interest and thus raised the value of any potential payout in the event of a partition.

Merits of Motion As noted in the briefing, the elements of a claim for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise, (2) a breach of that duty, (3) a proximate causal connection between the negligence conduct and the resulting injury, and (4) actual loss or damage resulting from the professional's negligence.

Summary judgment and/or adjudication involves two burdens: a burden of production and a burden of persuasion. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. The moving party, Attorney Martin, has not produced particular evidence regarding duty and breach – i.e. there is no expert testimony submitted in support of the motion to indicate whether Attorney Martin's decisions did or did not fall below the applicable standard of care for a professional. Instead, Attorney Martin's arguments largely revolve around the issues of causal connection and damages. Attorney Martin cites the case of Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 776-777 for the proposition that causation cannot be proved with expert opinion that is based on inference, speculation, or conjecture. The Saelzler case discussed what were, at the time, changes to the summary judgment statute that appear to have been intended to address the fact that, previously, 'the burden of proof rested entirely on the moving party to establish a right to summary judgment by demonstrating the negative proposition that the opposing party Calendar No.: Event ID:  TENTATIVE RULINGS

3115912 CASE NUMBER: CASE TITLE:  SIMON VS HALE [IMAGED]  37-2022-00028549-CU-PN-NC could not prevail. [Citations.] In most cases, this was a burden impossible to bear.'...' Saelzler, supra, 25 Cal.4th at 767-768 quoting Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 70.

The new statute expressly provided that the burden does not shift to a responding party until the moving party (in this context, as usual, a defendant or cross-defendant) has been able to 'show' that a cause of action has no merit 'because an element of the claim cannot be established or there is a complete defense.' Thus, the amended language... like its {federal} counterpart... places the initial burden on the moving party, and shifts it to the opposing party upon a 'showing' that one or more elements of the cause of action cannot be established. [Citation.] Saelzler, supra, 25 Cal.4th at 768 (emphasis removed) (citations omitted).

Therefore, we must determine whether defendants in the present case have shown, through evidence adduced in this case, including security records and deposition testimony, that plaintiff Saelzler has not established, and cannot reasonably expect to establish, a prima facie case of causation, a showing that would forecast the inevitability of a nonsuit in defendants' favor. Saelzler, supra, 25 Cal.4th at 768.

Saelzler, however, was not a malpractice case. In Saelzler, 'Plaintiff, citing her expert's declaration, opines that her injuries could have been avoided if defendants had hired roving security guards to patrol the entire premises during the day as well as at night.' Saelzler, supra, 25 Cal.4th at 776-777. The Saelzler court quoted the language of Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 435-439 to ask the question: 'where do we draw the line? How many guards are enough? Ten? Twenty? Two hundred?... To characterize a landowner's failure to deter the wanton, mindless acts of violence of a third person as the 'cause' of the victim's injuries is (on these facts) to make the landowner the insurer of the absolute safety of everyone who enters the premises.'' Saelzler, supra, 25 Cal.4th at 777, quoting Nola M., supra, 16 Cal.App.4th at 435-439.

In Saelzler, the moving defendant produced some evidence: ...defendants' security logs showed that they took some steps to control the situation, hiring security guards to patrol the premises at night, and making frequent and regular attempts to repair broken locks or nonfunctioning gates. The record indicates that these guards were on daily duty from 5:00 p.m. to 5:00 a.m. Defendants' manager stated that the guards' starting times ranged from 3:00 p.m. to 5:00 p.m, to make their schedule less predictable, and that defendant occasionally, on a random basis, employed full-time 24-hour security patrols on the premises. Defendants imposed a nighttime curfew on juveniles, and posted notices threatening eviction of tenants involved with drugs or gang activities. Defendants' security logs indicated their manager and security guards regularly checked access gates for forced entry and broken locks, broke up fights, forced aggressive tenants or trespassers to leave the area, and evicted tenants involved in criminal or gang activity. Saelzler, supra, 25 Cal.4th at 770.

There is a certain dearth of evidence in the present case when it comes to meeting Attorney Martin's initial burden of production. Unlike the above-described evidence in Saelzler tending to show some amount of safety precautions being taken by the defendant in that case such that the burden shifted to the plaintiff in that case to produce facts that demonstrated, at the very least, a triable issue of fact, the instant case merely walks through the steps of what happened in the underlying litigation.

To be clear, it is not that Plaintiff has put forth the clearest case of legal malpractice, or even made the clearest connections in terms of causation and damages. However, the burden of production does not shift if the moving party does not put forth at least prima facie evidence that it can prevail on at least one element of the cause of action being made against it.

It is the opinion of the Court that both parties are attempting to proceed in this case on very thin reeds – Attorney Martin has filed only two items of evidence in support of his motion, while Plaintiff has failed to even file a Separate Statement. The two items of evidence that Attorney Martin submits are: (1) his own declaration, which largely walks through the various actions he took in the litigation (ROA 176), and (2) the declaration of his counsel, which addresses failures by Plaintiff to respond to certain discovery even Calendar No.: Event ID:  TENTATIVE RULINGS

3115912 CASE NUMBER: CASE TITLE:  SIMON VS HALE [IMAGED]  37-2022-00028549-CU-PN-NC after a court order to do so.

While the Court can see the economy and efficiency of avoiding the costs to hire an expert to discuss the applicable standard of care and whether it was met, the omission of such evidence leaves the Court to only speculate in either direction – either speculating that Attorney Martin's conduct was adequate because he says so or speculating that it was inadequate because Plaintiff says so. Attorney Martin was hired to provide some services, namely, legal services, to Plaintiff while he was engaged in a marital dissolution action. While Plaintiff ultimately has the burden of proving up the elements of legal malpractice, which can be particularly difficult given that mere breach of the duty of care does not amount to actionable malpractice, that burden will be Plaintiff's at trial. Presently, on a motion for summary judgment, the burden is on Attorney Martin to produce prima facie evidence that he did not breach such a duty or that any breaches he did commit did not cause harm to Plaintiff. He has not done so on the thin record before this Court.

Finally, the Court is mindful of the argument by Attorney Martin that Plaintiff has failed to comply with certain discovery requirements. That issue appears to have existed as of October 2023 when the initial moving papers for this motion were filed. The present motion is not a discovery motion, and the Court declines to construe it as such. While there are remedies for failures to comply with discovery requests and for failure to comply with court orders to produce discovery responses (up to and including the sanction of terminating the case), the Court declines to construe the instant motion as a motion for terminating sanctions based upon failure to comply with discovery. On the other hand, the Court would note for all parties that it expects compliance with all discovery procedures and any failures to comply with the discovery statutes or court orders thereon will be considered in light of the overall litigation in these many cases (which might aptly be characterized as 'overlitigation') as well as the failure to substantively move the case forward. Said another way, if there is an underlying failure to engage in the discovery process, termination of the case can be achieved via a discovery-enforcement route rather than terminating the case via the granting of summary judgment where both parties' evidence is scant.

For the foregoing reasons, while the Court denies the instant Motion for Summary Judgment/Adjudication at present, the denial is expressly without prejudice if Attorney Martin wishes to produce additional evidence, including, potentially, expert testimony regarding the alleged malpractice that might be sufficient to shift the burden of production to Plaintiff to show a triable issue of fact.

RULING ON MOTION AGAINST ATTORNEY MARTIN (by Plaintiff Simon) An appearance is necessary on the Motion for Summary Judgment brought by plaintiff Simon against Attorney Martin.

As noted above with regard to Mr. Simon's 'motion for summary judgment' against Attorney McIntosh, it appears that the initial moving papers were filed back in September 2023. (ROA 153 and 154.) That motion, however, came off-calendar when Plaintiff notified this Court that he had filed for bankruptcy and that a stay had been imposed as of November 2023. (ROA 195.) This Court was subsequently notified in March 2024 that said stay had been lifted as early as January 2024. (ROA 205.) What differentiates the Motion for Summary Judgment/Adjudication filed by Attorney Martin (and addressed above) from the instant Motion for Summary Judgment filed by Plaintiff is that Attorney Martin re-filed his motion on March 15, 2024 – thereby putting it back 'on-calendar.' Plaintiff never did the same such that Plaintiff's previous motion was not back 'on-calendar' when the parties appeared before this Court for a Status Conference on April 12, 2024. (ROA 222.) It appears to the Court that this resulted in some confusion as to what the various parties were stipulating to at the Status Conference because the Minutes from that hearing indicate that '[t]he parties agree to all the calendared motions [plural] being heard on the same date' – as if there were more than one. (ROA 222 (emphasis added).) It further appears to the Court that Plaintiff Simon may have taken this to mean that his previously-filed motions had been revived or were being placed back 'on-calendar' Calendar No.: Event ID:  TENTATIVE RULINGS

3115912 CASE NUMBER: CASE TITLE:  SIMON VS HALE [IMAGED]  37-2022-00028549-CU-PN-NC when the language of the stipulation in the Minutes is not so clear.

The Court further notes that the Minutes indicate that counsel for Attorney Martin was to provide notice to Attorney McIntosh. (ROA 222.) However, in providing notice to Attorney McIntosh, Attorney Martin's counsel only referenced that 'the [singular] Motion for Summary Judgment/Adjudication is continued to June 28, 2024...' (ROA 222 (emphasis added).) Ultimately, Attorney Martin, who has fully briefed his own motion and filed a Reply to Plaintiff's Opposition with regard to Attorney Martin's Motion for Summary Judgment/Adjudication, has not filed any opposition brief to Plaintiff's motion. While the failure to oppose can result in the summary granting of a motion on grounds that failure to oppose constitutes a waiver and/or admission that the motion is meritorious, given the vigor with which Attorney Martin has prosecuted his own Motion for Summary Judgment/Adjudication strikes the Court as a product of confusion and/or lack of notice rather than a genuine decision not to oppose because the motion itself was meritorious.

As such, an appearance is necessary to clarify the parties' understanding of whether Plaintiff's Motion for Summary Judgment as against Attorney Martin was part of the stipulation that was made to 'agree that all the calendared motions [were] being heard on the same date...' and whether Attorney Martin intended not to oppose the motion or had some other understanding of the stipulation that was reached in open court back on April 12, 2024. (ROA 222.) Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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