Judge: Robert S. Draper, Case: 20STCV37150, Date: 2022-10-03 Tentative Ruling

Case Number: 20STCV37150    Hearing Date: October 3, 2022    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendants Callister, Broberg & Becker, ALC and Kirk O. Broberg’s Motion for Summary Judgment is GRANTED.  

FACTUAL BACKGROUND

This is an action for legal malpractice. The Complaint alleges as follows.

In 2017, Plaintiff Delianne Wing (“Plaintiff”) and her then-husband, non-party Michael Wing (“Michael”) obtained the legal services of Defendant Kirk O. Broberg (“Broberg”) and his firm, Callister, Broberg & Becker, ALC (“CBB” and together with Broberg, “Defendants”) to aid with estate planning matters. (Compl. ¶ 8.) With Defendants guidance, Plaintiff and Michael executed the Wing Family Trust (the “Trust”). (Ibid.) The corpus of the Trust consisted of Plaintiff and Michael’s community and separate property. (Ibid.) During their joint lifetime, Plaintiff and Michael each retained complete control over the disposition of Trust community property income and principal and their own separate property income and principal. (Ibid.)

In 2019, Plaintiff and Michael began the marital dissolution process. (Compl. ¶ 9.) Defendants told Plaintiff to sign papers relating to the Trust in preparation for the dissolution. (Ibid.) Defendants made no effort to explain the legal significance of the papers to Plaintiff, or to advise Plaintiff to seek independent counsel. (Ibid.)

Unbeknownst to Plaintiff, the aforementioned papers conveyed her interest in certain community property in the Trust to Michael as separate property. (Compl. ¶ 10.)

PROCEDURAL HISTORY

On September 29, 2020, Plaintiff filed the Complaint asserting three causes of action:

1.    Negligence (Legal Malpractice);

2.    Breach of Fiduciary Duty; and,

3.    Breach of Contract.

On December 15, 2020, Defendants filed an Answer.

On July 8, 2022, Defendants filed the instant Motion for Summary Judgment.

No Opposition has been filed.

DISCUSSION

      I.          MOTION FOR SUMMARY JUDGMENT

Defendants move for Summary Judgment of the entire action.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

A.   Causation or Recoverable Damages

Defendants argue, first, that summary judgment should be granted as Plaintiff has no evidence showing that Defendants’ alleged negligence caused Plaintiff damage.

To prevail on legal malpractice a party must prove four elements: “(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.”¿(Namikas¿v. Miller¿(2014) 225 Cal.App.4th 1574, 1581.)  

“[T]he elements of causation and damage are particularly closely linked” for legal malpractice claims.¿(Id. at 1582.) “The¿plaintiff must prove, by a preponderance of the evidence, that but for the attorney's negligent acts or omissions, he would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.”¿(Id.)  

“[O]ne who establishes malpractice on the part of his attorney in prosecuting or defending a lawsuit must also prove that careful management of it would have resulted in recovery of a favorable judgment and collection of same or, in case of a defense that proper handling would have resulted in a judgment for the client.” (Campbell v. Magana (1960) 184 Cal.App.2d 751, 754.) But such requirement should not be confused with causation or injury and is only used as a safeguard against speculative or conjectural claims and is a standard of proof designed to limit damages to that actually caused by the attorney’s malfeasance and is thus used correctly only as a means to safeguard against speculative damages. (See Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 833-34.)

Here, Defendants argue that the only property transferred to Michael was his separate property, which the Trust facially shows Michael had the legal right to dispose of at any time. (UMF 3-30.) Defendants contend that none of Plaintiff’s property rights were affected by this transaction. (Ibid.) As the language of the deed transferring Michael’s separate property from the Trust to Michael, then from Michael to Michael’s individual trust contained no language purporting to transmute Plaintiff and Michael’s community property to Michael’s individual property, Defendants contend Plaintiff’s property rights were in no way affected. (Ibid.)

Additionally, Defendants note that, as the Trust granted Michael the unilateral right to dispose of his separate property as he so pleased, Defendants’ alleged failure to obtain Plaintiff’s informed consent to the transfer is immaterial. (Ibid.)

Defendants have met their initial burden of showing the nonexistence of any triable issue of material fact as to their alleged negligence’s causation of harm to Plaintiff, or to Plaintiff’s damages whatsoever.

The burden now shifts to Plaintiff to show a triable issue of material fact demonstrating such causation. As Plaintiff has not filed an Opposition, Defendants’ Motion for Summary Judgment is GRANTED on this ground.

B.   Statute of Limitations

Next, Defendants argue that all three causes of action are time-barred pursuant to the one-year statute of limitations of Code of Civil Procedure section 340.6.

Section 340.6 states:

(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

(1) The plaintiff has not sustained actual injury;

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred...”

Section 340.6 applies to all wrongful acts or omissions by an attorney, other than actual fraud. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54; Stoll v. Superior Court (1992) Cal.App.4th 1362; Vafi v. McCloskey (2011) 193 Cal.App.3d 874.)

Here, Plaintiff argues that the Complaint is not time-barred as Defendants continued to provide legal advice or services to Plaintiff until April 8, 2019. (Compl. ¶ 11.) Defendants contend that pursuant to Emergency Rule 9(a), the limitations period for a cause of action against Defendants for professional negligence and related claims was tolled from April 6, 2020, to October 1, 2020. (Ibid.)

Defendants argue that Broberg last met with Plaintiff and Michael, and that the documents in question were signed, on March 28, 2019. (UMF 34-36.) Defendants did not provide Plaintiff with any legal advice following that date. (Ibid.) As March 28, 2019, is over a year from the beginning of the Rule 9(a) tolling period, Defendants argue that this action, filed in September 2020, is time-barred.

Defendants have met their initial burden of showing the nonexistence of any triable issue of material fact as to whether all three causes of action are time-barred. The burden now shifts to Plaintiff to show a triable issue of material fact demonstrating that tolling should apply.

As Plaintiff has not filed an Opposition, Defendants’ Motion for Summary Judgment is GRANTED on this ground.  

DATED: October 3, 2022       

______________________________

Hon. Robert S. Draper

Judge of the Superior Court