Judge: Robert B. Broadbelt, Case: 19STCV28515, Date: 2024-03-11 Tentative Ruling

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Case Number: 19STCV28515    Hearing Date: March 20, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Affeld Grivakes LLP and David Affeld

RESPONDING PARTIES:     Plaintiffs Michael LaPorta and Beverlee LaPorta

Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS 

The court rules on defendants Affeld Grivakes LLP and David Affeld’s evidentiary objections, filed on March 15, 2024, as follows:

The court sustains Objections Nos. 2-5.

The court overrules Objection No. 1.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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, subd. (p)(2).)  “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendants Affeld Grivakes LLP and David Affeld ( “Defendants”) move the court for an order granting summary adjudication in their favor and against plaintiffs Michael LaPorta and Beverlee LaPorta (“Plaintiffs”) (1) on the first cause of action for legal malpractice as to the claim that Defendants failed to convey to Plaintiffs a settlement offer in the underlying litigation, and (2) on the second cause of action for breach of fiduciary duty as to the claim that Defendants failed to convey to Plaintiffs a settlement offer in the underlying litigation.

As noted by Defendants, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1) [emphasis added].)  However, “[a] recognized exception to the statutory language [set forth in section 437c, subdivision (f)(1)] holds that where two or more separate and distinct wrongful acts are combined in the same cause of action in a complaint, a party may present a summary adjudication motion that pertains to some, but not all, of the separate and distinct wrongful acts.”  (Blue Mountain Enterprises, LLC v. Owen (2022) 74 Cal.App.5th 537, 549, citing Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 [“under subdivision (f) of section 437c, a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action”].)  “That is because each separate and distinct wrongful act is an invasion of a separate and distinct primary right, and each violation of a primary right is a separate and distinct ‘cause of action’ – regardless of how the claim is presented in the complaint.”  (Blue Mountain Enterprises, LLC, supra, 74 Cal.App.5th at p. 549.)

The court finds that Plaintiffs’ first cause of action for legal malpractice is based on several “separate and distinct wrongful acts [i.e., breaches][,]” including Defendants’ alleged   (1) failure to diligently prosecute the underlying matter, (2) failure to honestly disclose developments in the matter, including offers in settlement, (3) misrepresentation of the amount of settlement offers and the failure to disclose such offers, (4) disparagement of Plaintiffs in a discriminatory manner, (5) abandonment of Plaintiffs, (6) claiming and incurring of excessive fees and costs, (7) failure to timely respond to discovery and motions, and (8) delay in releasing file materials and failure to provide complete file materials to Plaintiffs.  (FAC ¶ 12; Blue Mountain Enterprises, LLC, supra, 74 Cal.App.5th at p. 548.)  Similarly, the court finds that the second cause of action for breach of fiduciary duty is based on several “separate and distinct wrongful acts [i.e., breaches of fiduciary duties][,]” including Defendants’ alleged (1) failure to perform legal services with competence, (2) failure to act with reasonable diligence, (3) failure to inform Plaintiffs of decisions and circumstances, (4) failure to explain matters to Plaintiffs to allow them to make informed decisions regarding their representation, (5) failure to promptly communicate the amounts, terms, and conditions of settlement offers, (6) abandonment of Plaintiffs, (7) failure to release the complete file to Plaintiffs and/or their subsequent counsel, and (8) engagement in conduct that involved dishonesty, conceit, and intentional misrepresentation.  (FAC ¶ 16; Blue Mountain Enterprises, LLC, supra, 74 Cal.App.5th at p. 548.)

Because Plaintiffs’ first and second causes of action are each based on several separate and distinct alleged violations of primary rights (breaches of duties), the court finds that Defendants’ motion for summary adjudication, which is directed at the separate claims that Defendants failed to convey a settlement offer in the amount of $300,000 to Plaintiffs in the underlying action, is proper.  (Code Civ. Proc., § 437c, subd. (f)(1); Blue Mountain Enterprises, LLC, supra, 74 Cal.App.5th at p. 549; Notice of Mot., p. 2:10-15; FAC ¶¶ 12, subds. (b) [Defendants were professionally negligent based on their “[f]ailure to honestly and fully disclose developments in the matter including offers in settlement”], (c) [Defendants were professionally negligent based on their “[m]isrepresenting the amount of and failure to disclose settlement offers”], 16, subd. (e) [Defendants breached their fiduciary duties to Plaintiffs because they “[f]ailed to promptly communicate the amounts, terms and conditions of settlement offers”]; Undisputed Material Fact (“UMF”) Nos. 1-2; Def. Compendium of Evidence (“Def. COE”) Ex. B, pp. 3:3-26, 4:16-21 [Pl. Michael LaPorta’s discovery responses stating that the facts supporting the contentions made in paragraphs 12 and 16 consist of there being a settlement offer in the amount of $300,000, of which Plaintiffs were not advised].)   

The court therefore rules on Defendants’ motion for summary adjudication only as to     (1) the first cause of action for legal malpractice, limited to the separate and distinct claim that Defendants breached their legal duty to Plaintiffs when they failed to convey a settlement offer in the amount of $300,000 to Plaintiffs in the underlying action, and (2) the second cause of action for breach of fiduciary duty, limited to the separate and distinct claim that Defendants breached their fiduciary duties to Plaintiffs when they failed to convey a settlement offer in the amount of $300,000 to Plaintiffs in the underlying action.  (FAC ¶¶ 12, subds. (b), (c), 16, subd. (e); Blue Mountain Enterprises, LLC, supra, 74 Cal.App.5th at p. 549.)

1.     First Cause of Action for Legal Malpractice

“[T]he elements for a legal malpractice cause of action in California are: ‘(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 resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.’”  (Akhlaghpour v. Orantes (2022) 86 Cal.App.5th 232, 254-255 [internal citation omitted].)

The court finds that Defendants have met their burden of showing that the first cause of action for legal malpractice (the scope of which has been limited above) has no merit because Defendants have shown that an element of the cause of action (Defendants’ breach of their duties) cannot be established.

First, Defendants have submitted evidence establishing that (1) Damion Robinson, of Affeld Grivakes LLP, attended the August 28, 2018 mandatory settlement conference with Plaintiffs in the underlying matter, but Plaintiffs stayed in the hallway and were not present for the in-chambers discussions counsel had with Judge Miller; (2) Defendants informed Plaintiffs that (i) a settlement offer of $50,000 was made at the August 28, 2018 mandatory settlement conference and (ii) Jody Steinberg (who attended the August 28, 2018 mandatory settlement conference on behalf of the defense) had indicated that more money was available to settle the case; and (3) the defendants in the underlying action did not make a $300,000 settlement offer at the first mandatory settlement conference.  (UMF Nos. 3-4, 14, 16; Robinson Decl., ¶¶ 10-11, 14-15; Def. COE Ex. D, Steinberg Dep., pp. 35:20-36:7 [testifying that (1) any settlement offer made on behalf of the defense at the August 2018 mandatory settlement conference was made by Steinberg personally, (2) the highest amount that was offered in settlement in that setting was $50,000, and (3) it “is not true” that a $300,000 settlement offer was made by the defense at the first mandatory settlement conference].)  

Second, Defendants have submitted evidence showing that Plaintiffs cannot establish the element of breach of duty because the only evidence that they produced during discovery is inadmissible and therefore insufficient.  Specifically, in response to Defendants’ Requests for Production of Documents, numbers 4 and 20, Defendants demanded the production of all writings pertaining or relating to the allegations that Defendants failed to disclose the terms and amounts of all settlement offers to Plaintiffs.  (Def. COE Ex. C, Requests for Production, pp. 3:13-17, 7:13-20.)  Plaintiff Michael LaPorta produced “Exhibit 1” in response thereto.  (Ibid.)  That exhibit includes (1) an email from defendant David Affeld dated September 3, 2018, which does not state that a $300,000 settlement offer was made, (2) what appears to be a handwritten note, and (3) a letter dated November 29, 2018 addressed to Plaintiffs and signed by Paul Hittelman.  (Def. COE Ex. 1 to Ex. C, pp. 2, ¶ 4 [Sep. 3, 2018 email]; Def. COE Ex. 1 to Ex. C, p. 1 [Hittelman letter].)  It is undisputed that the letter from Hittelman is “the only evidence of a $300,000 settlement offer made at the first” mandatory settlement conference that plaintiff Michael LaPorta identified and produced.  (UMF No. 22.)  However, the court finds that this letter is inadmissible to prove that a $300,000 settlement offer was made because the statements made therein to that effect are hearsay.  (Evid. Code, § 1200, subd. (a) [“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”].)  

Thus, the court finds that Defendants have met their burden of submitting evidence establishing that they did not fail to convey a settlement offer in the amount of $300,000 to Plaintiffs during the underlying litigation and therefore have negated the element of breach of duty.  (Akhlaghpour, supra, 86 Cal.App.5th at pp. 254-255.)

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the element of Defendants’ breach of duty.      

            In opposition, Plaintiffs assert that (1) certain individuals (namely, an agent of the insurer and Plaintiffs’ previous attorney) told them that a $300,000 settlement offer was made at the August 2018 mandatory settlement conference, and (2) plaintiff Beverlee LaPorta heard the settlement judge state that a $300,000 settlement offer had been made.  (Opp., pp. 1:28-2:7.)  However, the court has sustained Defendants’ evidentiary objections to the evidence submitted by Plaintiffs to support those assertions.  Thus, Plaintiffs have not submitted admissible evidence in support of those assertions. 

            The court therefore finds that Plaintiffs have not met their burden to submit evidence that is sufficient to show the existence of a triable issue of material fact as to the element of Defendants’ breach of duty.

The court therefore grants Defendants’ motion for summary adjudication as to the first cause of action for legal malpractice, limited to the claim that Defendants committed legal malpractice by failing to disclose and misrepresenting the terms of the alleged $300,000 settlement offer to Plaintiffs in the underlying litigation.  (FAC ¶ 12, subds. (b), (c); Blue Mountain Enterprises, LLC, supra, 74 Cal.App.5th at p. 549.)

2.     Second Cause of Action for Breach of Fiduciary Duty

“‘The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.’”  (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.)

The court finds that Defendants have met their burden of showing that the second cause of action for breach of fiduciary duty (the scope of which has been limited above) has no merit because Defendants have shown that an element of the cause of action (Defendants’ breach of their fiduciary duties) cannot be established.

As set forth above, Defendants have submitted evidence establishing that (1) the defendants in the underlying action did not make a settlement offer in the amount of $300,000, and (2) the evidence produced by Plaintiffs in discovery to support their claim that such a settlement offer was made but not relayed to them is inadmissible hearsay and therefore  is insufficient to establish the element of Defendants’ breach of their fiduciary duties.  (UMF Nos. 3-4, 14, 16, 22; Robinson Decl., ¶¶ 10-11, 14-15; Def. COE Ex. D, Steinberg Dep., pp. 35:20-36:7; Def. COE Ex. 1 to Ex. C; Evid. Code, § 1200.)  The court finds that this evidence is sufficient to show that Defendants did not fail to inform Plaintiffs of a settlement offer made in the underlying action and therefore is sufficient to show that the element of breach of their fiduciary duties cannot be established.  (O’Neal, supra, 8 Cal.App.5th at p. 1215.)

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the element of Defendants’ breach of their fiduciary duties.  

As set forth above, although Plaintiffs have asserted that they were informed that a $300,000 settlement offer was made at the August 2018 mandatory settlement conference, Plaintiffs have not submitted admissible evidence in support of those assertions.  Thus, Plaintiffs have not met their burden to submit evidence that is sufficient to show the existence of a triable issue of material fact as to the element of Defendants’ breach of their fiduciary duties.

The court therefore grants Defendants’ motion for summary adjudication as to the second cause of action for breach of fiduciary duties, limited to the claim that Defendants breached their fiduciary duties by failing to promptly communicate the amounts, terms, and conditions of all settlement offers in the underlying litigation.  (FAC ¶ 16, subd. (e); Blue Mountain Enterprises, LLC, supra, 74 Cal.App.5th at p. 549.)

ORDER

            The court grants defendants Affeld Grivakes LLP and David Affeld’s motion for summary adjudication (1) as to plaintiff Michael LaPorta and Beverlee LaPorta’s first cause of action for legal malpractice, limited to the claim that defendants Affeld Grivakes LLP and David Affeld committed legal malpractice by failing to disclose and misrepresenting the terms of the alleged $300,000 settlement offer to them in the underlying litigation, and (2) as to plaintiff Michael LaPorta and Beverlee LaPorta’s second cause of action for breach of fiduciary duties, limited to the claim that defendants Affeld Grivakes LLP and David Affeld breached their fiduciary duties by failing to promptly communicate the amounts, terms, and conditions of settlement offers in the underlying litigation.  (Pl. First Amended Complaint, ¶¶ 12, subds. (b), (c), 16, subd. (e).)

            The court orders defendants Affeld Grivakes LLP and David Affeld to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 20, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court