Judge: Robert B. Broadbelt, Case: 20STCV32687, Date: 2023-02-21 Tentative Ruling

Case Number: 20STCV32687    Hearing Date: February 21, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Wellman & Warren, LLP, Scott W. Wellman, and Christopher Wellman, on behalf of defendant Christopher Wellman

RESPONDING PARTIES:     Plaintiffs Addison Marchese and Michelle Marchese

Motion for Summary Judgment

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

REQUEST FOR JUDICIAL NOTICE

The court grants defendants Wellman & Warren, LLP, Scott W. Wellman, and Christopher Wellman’s request for judicial notice.  (Evid. Code, § 452, subd. (d).)

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

1.     First Cause of Action for Legal Malpractice

“‘In a legal malpractice action arising from a civil proceeding, the elements 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 the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.’”  (Moua v. Pittullo, Howington, Barker, Abernathy, LLP (2014) 228 Cal.App.4th 107, 112.)

The court finds that Defendants have not met their burden of showing that the first cause of action for legal malpractice has no merit as to defendant Christopher Wellman (“C. Wellman”) because Defendants have not shown that the elements of (1) breach of duty, or (2) causation cannot be established as to each act or omission alleged to support this cause of action.

A motion for summary judgment can be granted only if all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c.)  The court finds that Defendants have not met their burden of showing that C. Wellman is entitled to judgment as a matter of law because Defendants address only one act or omission that Plaintiffs claim constitutes the breach of duty in their legal malpractice claim:  initiating the underlying litigation without first mediating the dispute as required by the lease agreement.  (Compl., ¶¶ 11, 20.)  However, Plaintiffs allege that they were harmed based on two separate acts or omissions: (1) Defendants’ initiating the underlying litigation without first mediating Plaintiffs’ dispute as required by the lease agreement, and (2) Defendants’ failing to advise Plaintiffs that they would be waiving their rights to attorney’s fees and costs by filing the complaint in the underlying action prior to mediating the dispute with their landlords.  (Compl., ¶¶ 11, 14, 19-21.)

In their motion, Defendants assert that Plaintiffs cannot establish the element of breach of duty as to C. Wellman on the ground that he was not involved in the preparation or the filing of the complaint in the underlying action, or consulted as to when the complaint should be filed or whether mediation should be demanded.  (Undisputed Material Fact Nos. 11-12, 17-19.)  However, these arguments only address the allegation that C. Wellman breached his legal duty to Plaintiffs based on initiating the litigation without first mediating Plaintiffs’ dispute as required by the lease.  (Mot., pp. 6:8-10, 6:23-24, 7:1-5.) 

The language in Defendants’ memorandum of points and authorities and the evidence submitted in support of their moving papers confirm that Defendants did not address the second act or omission on which Plaintiffs base their claim.  First, Defendants state that Plaintiffs “identify one action which they claim constitutes legal malpractice . . . : the purported failure to seek mediation prior to filing the complaint in the underlying action.  There are no other claimed issues as to the remainder of defendants’ legal services.”  (Mot., p. 6:6-10.)  Thus, Defendants have expressly limited their motion to only one theory on which Plaintiffs base their cause of action.  Second, Defendants have not submitted any evidence that shows Plaintiffs cannot establish the element of breach of C. Wellman’s duty to advise Plaintiffs that they would be waiving their rights to attorney’s fees and costs by filing the complaint in the underlying action prior to mediating their dispute with their landlords.  Defendants do not submit evidence establishing that C. Wellman (1) did not interact with or advise Plaintiffs on any matters related to the underlying litigation, or (2) advised Plaintiffs of the risk of waiver of their rights to attorney’s fees and costs by filing the complaint prior to mediating their dispute with their landlords. 

In addition, “[i]n negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional’s acts are measured remains a matter peculiarly within the knowledge of experts.  Only their testimony can prove it unless the lay person’s common knowledge includes the conduct required by the particular circumstances.  [Citation.]  This rule applies to legal malpractice cases.  [Citation.]”  (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4^th 1229, 1239.)  Without presenting expert testimony to establish the standard of care (duty of care) and whether C. Wellman fell below the standard of care (breach of duty of care), Defendants have not met their burden to establish that the element of breach of duty cannot be established.  (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4^th 1509, 1535 [“[Defendants] produced no expert testimony negating the duty of care or breach of duty elements of [plaintiff’s] cause of action, and the motion for summary judgment should have been denied even though [plaintiff] did not produce expert testimony.”].)

The court therefore finds that Defendants have not met their burden of showing that the element of breach of duty cannot be established because they have not presented (1) evidence to show that Plaintiffs cannot establish the element of breach of duty as to the allegation that C. Wellman failed to advise Plaintiffs that they would be waiving their rights to attorney’s fees and costs by filing the complaint in the underlying action prior to mediating their dispute with their landlords, or (2) argument addressing C. Wellman’s alleged failure to advise Plaintiffs of that risk. 

Similarly, Defendants contend that C. Wellman did not proximately cause Plaintiffs’ claimed damages based on the same facts and evidence presented in connection with their discussion on the element of breach of duty.  (Mot., p. 7:17-18.)  As set forth above, Defendants have not submitted any evidence, or presented any argument, addressing the second act or omission on which Plaintiffs’ legal malpractice claim is based.  The court therefore finds that Defendants have not met their burden of showing that Plaintiffs cannot establish that C. Wellman proximately caused Plaintiffs’ damages by failing to advise Plaintiffs that they would be waiving their rights to attorney’s fees and costs by filing the complaint in the underlying action prior to mediating their dispute with their landlords.   

            Even if Defendants had met their burden of showing that the elements of breach of duty and causation could not be established, Plaintiffs have submitted evidence showing that triable issues of material fact exist as to the elements of C. Wellman’s breach of his duty of care and causation of damages.

Plaintiffs submit evidence establishing that (1) before the underlying action was filed, Plaintiffs spoke to C. Wellman regarding legal issues, and specifically, issues pertaining to the lease itself; (2) C. Wellman did not advise Plaintiffs “of the risk that any right to attorney’s fees would be forfeited if the underlying lawsuit was filed prior to requesting mediation[;]” and (3) C. Wellman performed work in connection with the underlying litigation before the complaint was filed.  (A. Marchese Decl., ¶¶ 4-8; Libbey Decl., Ex. 2, p. 3.2 [8/7/2017 entry stating that C. Wellman was consulted re: venue]; S. Wellman Decl., Ex. B [underlying complaint filed on August 8, 2017].)  Thus, even if Defendants had met their burden of showing that the first cause of action has no merit, Plaintiffs have introduced evidence to show there are triable issues of material facts as to the elements of breach of duty and causation.

The court therefore denies Defendants’ motion for summary judgment as to defendant Christopher Wellman.

ORDER

The court denies defendants Wellman & Warren, LLP, Scott W. Wellman, and Christopher Wellman’s motion for summary judgment as to defendant Christopher Wellman.

The court orders plaintiffs Addison Marchese and Michelle Marchese to give notice of this ruling.  

IT IS SO ORDERED.

DATED:  February 21, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court