This case was last updated from Los Angeles County Superior Courts on 05/27/2019 at 02:30:28 (UTC).

MADELINE MOORE VS DENNIS P RILEY ET AL

Case Summary

On 06/15/2017 MADELINE MOORE filed a Contract - Professional Negligence lawsuit against DENNIS P RILEY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5258

  • Filing Date:

    06/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Petitioner and Plaintiff

MOORE MADELINE

Respondents and Defendants

FREDERICKSON LAW

HAMILTON DAVID S.

FREDERICKSON ROGER B.

RILEY DENNIS P.

DOES 1 TO 25

MESSICA RILEY & KREITENBERG LLP

RICHARD CARSEL

RICHARD A. CARSEL P.C.

LAW FREDERICKSON

CARSEL P.C. RICHARD A.

CARSEL RICHARD

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

STEINER LEONARD ESQ.

STEINER LEONARD SAMUEL

Respondent and Defendant Attorneys

GRETCHEN S. CARNER

VOLGER MICHAEL J.

NEMECEK FRANK W. ESQ.

FELDMAN KENNETH C. ESQ.

MCCARTHY & KROES LAW OFFICES OF

CARNER GRETCHEN SIGRIDUR

VOGLER MICHAEL JOHN

MCCARTHY PATRICK

NEMECEK FRANK WYNN

Other Attorneys

FREDERICKSON LAW GROUP

MICHAEL J. VOGLER

 

Court Documents

NOTICE OF MOTION AND MOTION BY DEFENDANT DAVID S. HAMILTON TO STRIKE TREBLING OF PUNITIVE DAMAGES FROM THE FIRST AMENDED COMPLAINT OF PLAINTIFF MADELINE MOORE; DECLARATION OF BRIANA E. MCCARTHY PURSUA

2/8/2018: NOTICE OF MOTION AND MOTION BY DEFENDANT DAVID S. HAMILTON TO STRIKE TREBLING OF PUNITIVE DAMAGES FROM THE FIRST AMENDED COMPLAINT OF PLAINTIFF MADELINE MOORE; DECLARATION OF BRIANA E. MCCARTHY PURSUA

NOTICE OF JOINDER AND JOINDER DF DEFENDANTS ROGER B. FREDERICKSON, AND FREDERICKSON LAW IN DEFENDANT DAVID S. HAMILTON'S MOTION TO STRIKE TREBLING OF PUNITIVE DAMAGES FROM THE FIRST AMENDED COMPLAINT

2/13/2018: NOTICE OF JOINDER AND JOINDER DF DEFENDANTS ROGER B. FREDERICKSON, AND FREDERICKSON LAW IN DEFENDANT DAVID S. HAMILTON'S MOTION TO STRIKE TREBLING OF PUNITIVE DAMAGES FROM THE FIRST AMENDED COMPLAINT

NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFFS INSPECTION DEMAND NOS. 1 AND 2; ETC.

9/4/2018: NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFFS INSPECTION DEMAND NOS. 1 AND 2; ETC.

PLAINTIFF'S SEPARATE STATEMENT RE INSPECTION DEMAND NOS. 1 AND 2 IN SUPPORT OF MOTION TO COMPEL

9/4/2018: PLAINTIFF'S SEPARATE STATEMENT RE INSPECTION DEMAND NOS. 1 AND 2 IN SUPPORT OF MOTION TO COMPEL

NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF MOORE TO PROVIDE ANSWERS TO REQUESTS FOR ADMISSION (SET ONE) NOS. 27 AND 34, AND CORRESPONDING FURTHER RESPONSES TO FORM INTERROGATORY NO. 17.1 REGARDIN

9/5/2018: NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF MOORE TO PROVIDE ANSWERS TO REQUESTS FOR ADMISSION (SET ONE) NOS. 27 AND 34, AND CORRESPONDING FURTHER RESPONSES TO FORM INTERROGATORY NO. 17.1 REGARDIN

SEPARATE STATEMENT IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 27 AND 34, AND CORRESPONDING RESPONSES TO FORM INTERROGATORY NO. 17.1

9/5/2018: SEPARATE STATEMENT IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 27 AND 34, AND CORRESPONDING RESPONSES TO FORM INTERROGATORY NO. 17.1

NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS AND PRODUCTION AT DEPOSITION BY CROSS-DEFENDANT RICHARD CARSEL,; ETC.

9/19/2018: NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS AND PRODUCTION AT DEPOSITION BY CROSS-DEFENDANT RICHARD CARSEL,; ETC.

SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ANSWERS AND PRODUCTION AT DEPOSITION BY CROSS-DEFENDANT RICHARD CARSEL

9/19/2018: SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ANSWERS AND PRODUCTION AT DEPOSITION BY CROSS-DEFENDANT RICHARD CARSEL

OPPOSITION TO MOTION TO COMPEL ANSWERS AND PRODUCTION AT DEPOSITION BY CROSS-DEFENDANT RICHARD CARSEL, AND FOR MONETARY SANCTIONS ETC.; REQUEST FOR SANCTIONS AGAINST DEFENDANT HAMILTON AND ILLS COUNSE

9/28/2018: OPPOSITION TO MOTION TO COMPEL ANSWERS AND PRODUCTION AT DEPOSITION BY CROSS-DEFENDANT RICHARD CARSEL, AND FOR MONETARY SANCTIONS ETC.; REQUEST FOR SANCTIONS AGAINST DEFENDANT HAMILTON AND ILLS COUNSE

Minute Order

10/3/2018: Minute Order

Notice of Ruling

10/9/2018: Notice of Ruling

Proof of Service by Mail

10/23/2018: Proof of Service by Mail

Minute Order

10/24/2018: Minute Order

Motion to Compel Further Discovery Responses

10/31/2018: Motion to Compel Further Discovery Responses

Request for Judicial Notice

10/31/2018: Request for Judicial Notice

Request for Judicial Notice

11/28/2018: Request for Judicial Notice

Motion to Compel Further Discovery Responses

11/28/2018: Motion to Compel Further Discovery Responses

Motion to Compel

11/30/2018: Motion to Compel

127 More Documents Available

 

Docket Entries

  • 05/23/2019
  • DocketReply (Consolidated Reply to Motion for Protective Order re Admissions and RFPD); Filed by Messica, Riley & Kreitenberg LLP (Defendant)

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  • 05/17/2019
  • DocketObjection (Evidentiary Objections to Declaration of Dennis P. Riley); Filed by Madeline Moore (Plaintiff)

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  • 05/17/2019
  • DocketOpposition (to Motion for Protective Order re Request for Admissions); Filed by Madeline Moore (Plaintiff)

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  • 05/17/2019
  • DocketOpposition (to Motion for Protective Order re Request for Production of Documents); Filed by Madeline Moore (Plaintiff)

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  • 05/13/2019
  • Docketat 09:30 AM in Department 47, Randolph M. Hammock, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 05/09/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Vacated

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  • 05/06/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/26/2019
  • DocketNotice of Settlement; Filed by David, S. Hamilton (Defendant)

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  • 04/26/2019
  • DocketRequest for Dismissal; Filed by David, S. Hamilton (Defendant)

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  • 04/16/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Protective Order - Not Held - Rescheduled by Party

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233 More Docket Entries
  • 09/26/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/25/2017
  • Docketat 08:30 AM in Department 47; Case Management Conference (Conference-Case Management; Matter continued) -

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  • 09/25/2017
  • DocketMinute Order

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  • 09/25/2017
  • DocketMinute order entered: 2017-09-25 00:00:00; Filed by Clerk

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  • 06/30/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/30/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/15/2017
  • DocketCOMPLAINT FOR: 1. PROFESSIONAL NEGLIGENCE; ETC

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  • 06/15/2017
  • DocketSUMMONS

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  • 06/15/2017
  • DocketComplaint; Filed by Madeline Moore (Plaintiff)

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  • 02/14/2017
  • DocketNotice; Filed by Roger B. Frederickson (Defendant)

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Tentative Rulings

Case Number: ****5258 Hearing Date: June 29, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

madeline moore, individually and as Successor Trustee of the Moore Family Trust dated June 1, 1983 ,

Plaintiff,

vs.

dennis p. riley , et al.,

Defendants.

Case No.:

****5258

Hearing Date:

June 29, 2022

Time:

10:00 a.m.

[tentative] Order RE:

(1) defendant’s motion to compel further responses to special interrogatories, set two;

(2) defendants’ motion to compel production of documents at deposition

MOVING PARTY: Defendant Dennis P. Riley

RESPONDING PARTY: Plaintiff Madeline Moore

Motion to Compel Further Responses to Special Interrogatories, Set Two

MOVING PARTY: Defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg

RESPONDING PARTY: Plaintiff Madeline Moore

Motion to Compel Production of Documents at Deposition

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

Plaintiff Madeline Moore, individually and as Successor Trustee of the Moore Family Trust dated June 1, 1983 (“Plaintiff”) filed this legal malpractice action against Dennis P. Riley, Mesisca, Riley & Kreitenberg, LLP, Roger B. Frederickson, Frederickson Law, and David S. Hamilton on June 15, 2017. Plaintiff’s First Amended Complaint against Defendants was filed on January 8, 2018. The First Amended Complaint alleges nine causes of action for (1) professional negligence; (2) breach of fiduciary duty; (3) fraud (including concealment); (4) negligent misrepresentation; (5) fraud (including concealment); (6) negligent misrepresentation; (7) breach of contract; (8) financial elder abuse; and (9) declaratory relief. On April 5, 2018, the court sustained the demurrer filed by Dennis P. Riley and Mesisca, Riley & Kreitenberg, LLP as to the third, fourth, seventh, and eighth causes of action, without leave to amend.

Defendant Denis P. Riley (“Riley”) and Mesisca, Riley & Kreitenberg LLP (collectively, “Defendants”) now move the court for orders compelling Plaintiff’s further responses to Riley’s Special Interrogatories, Set Two, and Defendants’ requests for production of documents in Defendants’ notice of deposition.

REQUEST FOR JUDICIAL NOTICE

The court grants Defendants’ request for judicial notice. (Evid. Code 452, subd. (d).)

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES

Defendant Riley moves the court for an order compelling Plaintiff to serve further responses to Riley’s Special Interrogatories, Set Two, numbers 100, 101, 102, and 103. Riley further requests sanctions in the sum of $1,860.00. In opposition, Plaintiff requests that the court award sanctions against Riley and his counsel of record in the amount of $6,757.26.

The court grants Riley’s motion to compel Plaintiff’s further responses to Special Interrogatory Nos. 100 and 101 because Plaintiff’s answers to those interrogatories are evasive and incomplete. (Code Civ. Proc., 2030.300, subd. (a)(1).)

The court grants Riley’s motion to compel Plaintiff’s further response to Special Interrogatory No. 102 because (1) Plaintiff’s answer to this interrogatory is evasive and incomplete, and (2) the exercise of the option to produce documents under section 2030.320 is unwarranted, and the required specification of those documents is inadequate. (Code Civ. Proc., 2030.300, subd. (a)(1), (a)(2).)

The court grants Riley’s motion to compel Plaintiff’s further response to Special Interrogatory No. 103 because Plaintiff’s answer to this interrogatory is evasive and incomplete. (Code Civ. Proc., 2030.300, subd. (a)(1).)

The court grants Riley’s request for monetary sanctions against plaintiff Madeline Moore. (Code Civ. Proc., 2030.300, subd. (d).) The court finds that Riley’s request for sanctions in the amount of $1,860.00 is a reasonable amount of sanctions to impose on this motion.

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION

Defendants Riley and Mesisca, Riley & Kreitenberg LLP move the court for an order compelling Plaintiff to serve further responses document requests Nos. 4 and 5 in Defendants’ notice of deposition of Plaintiff.

Specifically, Defendants request the production of all communications between Plaintiff and Richard Carsel (“Carsel”) (1) between May 4, 2016 and August 16, 2016 regarding the underlying action and (2) between June 20, 2016 and August 16, 2016 regarding any offer to settle the underlying action. Plaintiff objected to those requests on the ground of attorney-client privilege. Defendants contend that this request is proper because, on February 20, 2020, Plaintiff filed an opposition to Defendants’ motion for summary judgment that was accompanied by Carsel’s declaration which stated expert opinions. Plaintiff opposes the motion, contending that Defendants’ motion should be denied (1) as an improper motion for reconsideration of the court’s January 3, 2019 order and (2) because Plaintiff did not waive the attorney-client privilege.

The principal question presented to the court is whether Plaintiff, by submitting Carsel’s declaration, waived the attorney-client privilege.

The court first summarizes the contents of the Carsel declaration as follows. Carsel acted as the estate and trust attorney for the Moore Family Trust dated June 1, 1983 (the “Trust”) established by James Moore, Sr. (“Jim”) and Caroline Moore (“Caroline”). (Declaration of Richard Carsel dated February 19, 2020 filed in support of Plaintiff’s opposition to Defendants’ motion for summary judgment (“Carsel Decl.”), 4.) Carsel was advised by Plaintiff that there had been breaches of fiduciary duties by prior attorney Frederick Weitkamp and prior accountant Donald Lucove, and that the prior trustee, Henry Watterworth and the Trust’s attorney, Martha Spalding, knew of those breaches but failed to act. (Carsel Decl., 5.) Carsel informed Plaintiff that he had a conflict of interest that prevented his representation of the Trust, because Spalding was a personal friend. (Ibid.) Other than providing Riley with assistance in his prosecution against Watterworth and Spalding, Carsel had no other role in the litigation. (Ibid.) Carsel thus stated that his declaration was made in his capacity as a trust and estate practitioner and based on Plaintiff’s concurrently-filed declaration. (Carsel Decl., 6.)

Carsel opined (1) that Lucove and Weitkamp were fiduciaries to Jim and Caroline; (2) that Lucove and Weitkamp should have put together a plan for the management of the Trust properties; (3) that Lucove and Weitkamp’s failure to put a management plan in place for the income from the Trust properties fell below the standard of care; (4) that Lucove and Weitkamp’s acts in allowing Jim and Caroline to refinance and take additional loans on the Trust properties fell below the standard of care; (5) that Lucove and Weitkamp should have taken steps to prevent 20 different specified loans made by Jim and Caroline, and that by allowing these transactions, their conduct fell below the standard of care; (6) that Lucove and Weitkamp should not have allowed Jim and Caroline to employ Fritz as bookkeeper for the Trust and that, in doing so, their conduct fell below the standard of care; (7) that Lucove and Weitkamp should not have allowed Jim and Caroline to sell the Wyandotte Street property; (8) that Lucove and Weitkamp’s conduct regarding the sale of five specific properties fell below the standard of care; (9) that Watterworth and Spalding should have conducted a review of the Trust’s holdings and transactions and investigated the conduct of Lucove, Weitkamp, and Fritz; (10) that in failing to investigate the conduct of Fritz, Weitkamp, and Lucove, the conduct of Watterworth and Spalding fell below the standard of care for a trustee and attorney of the Trust; (11) that Riley’s conduct of designating Wallace as an expert witness fell below the standard of care because Wallace was not a qualified expert witness with respect to trusts and trust litigation; and (12) that, if Riley had designated one or more qualified expert witnesses on the specified eight topics, Plaintiff would have prevailed in the litigation against Watterworth and Spalding. (Carsel Decl., 7, 9, 10-12, 15, 16, 18-19, 21-22, 26-28.)

After considering the evidence and arguments presented by the parties, the court denies Defendants’ motion to compel Plaintiff’s production of documents specified in the deposition notice. (Code Civ. Proc., 2025.480, subd. (a).)

As an initial matter, the court finds that Defendants’ motion is not an improper reconsideration of the court’s January 3, 2019 order. The January 3, 2019 order concerned a motion to compel filed by defendant David S. Hamilton and was unrelated to the alleged waiver of the attorney-client privilege stemming from the Carsel’s February 19, 2020 declaration. (RJN, Ex. 2.)

However, the court finds that Plaintiff has not waived the attorney-client privilege by submitting Carsel’s declaration. First, the court notes that neither party appears to dispute that Carsel and Plaintiff had an attorney-client relationship. Defendants contend that Carsel represented Plaintiff between April 2016 and July 26, 2016. (Mot., 3:17-19.) Plaintiff does not dispute this characterization.

Second, the court finds that the submission of Carsel’s declaration does not constitute a waiver of the privilege. “The [attorney-client] privilege may be lost by an express or implied waiver.” (Shooker v. Superior Court (2003) 111 Cal.App.4th 923, 928.) The privilege may be waived “with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to the disclosure made by anyone.” (Evid. Code 452, subd. (a).) For example, “‘“[i]f the client calls his attorney as a witness to testify to matters that the attorney could only have learned through the attorney-client relationship, he waives the privilege…”’” (Shooker, supra, 111 Cal.App.4th at p. 929 [citations omitted].)

Here, Plaintiff submitted Carsel’s declaration in support of her opposition to Defendants’ motion for summary judgment. Importantly, Carsel stated the foundation for his declaration as follows:

I am making this declaration in my capacity as a long-time trust and estate practitioner with expertise in the subject matter. Because of my lack of knowledge of the facts of the underlying case against the former fiduciaries of the Trust (e.g., Frederick Weitkamp, Donald Lucove and Crystal Fritz), I have relied on the declaration of Madeline Moore in opposition to Riley’s summary judgment motion and the exhibits thereto, which is the sole source of my knowledge of the facts of the underlying case. For the purposes of this declaration, all of my opinions expressed herein below are based on the premise that the facts as stated by Madeline are true and correct; with that as a given, based on my education, experience and knowledge of the areas of law stated above, I have formulated the opinions set forth below.

(Carsel Decl., 6.)

Carsel’s prefatory statement establishes that (1) Carsel did not disclose a significant part of, or any part of, any privileged communications between Carsel and Plaintiff, since Carsel made his statements based only on his capacity as a trust and estate practitioner and upon consideration of Plaintiff’s declaration and attached exhibits; (2) Carsel did not rely on a significant part of, or any part of, any privileged communications between Carsel and Plaintiff in forming or stating his opinions; and (3) that Plaintiff has not consented to disclosure made by anyone. (See Evid. Code 912, subd. (a).) Thus, the information sought by Defendants’ document requests Nos. 4 and 5 does not encompass Carsel’s testimony. Carsel did not rely on or disclose any communications between Carsel and Plaintiff (1) regarding the underlying action from the period of May 4, 2016 to August 16, 2016 or (2) regarding any offer to settle the underlying action from the period of June 20, 2016 to August 16, 2016. (Def. Separate Statement, 2:2-3 [Request For Production No. 4], 2:24-25 [Request for Production No. 5].)

The court finds that, because Carsel neither “disclosed a significant part of the [privileged] communication” nor “testif[ied] to matters that [Carsel] could only have learned through the attorney-client relationship,” Plaintiff did not waive the privilege by submitting his expert declaration. (Evid. Code 912, subd. (a); Shooker, supra, 111 Cal.App.4th at p. 929.) Moreover, Defendants’ requests for production do not request information concerning any matter upon which Carsel testified, and Defendants’ only reason for seeking production of these documents is premised on the argument that Plaintiff waived the attorney-client privilege. For the reasons set forth above, the court finds that these communications remain protected by the attorney-client privilege.

Accordingly, the court finds that Plaintiff has not waived the attorney-client privilege by submitting the expert declaration of Richard Carsel.

The court therefore denies Defendants’ motion to compel production of documents at deposition. (Code Civ. Proc., 2025.480, subd. (a).)

ORDER

The court grants defendant Dennis P. Riley’s motion to compel Plaintiff’s further responses to Special Interrogatory Nos. 100, 101, 102, and 103.

The court orders plaintiff Madeline Moore to serve on defendant Dennis P. Riley full and complete verified answers, without objections, to Special Interrogatory Nos. 100, 101, 102, and 103 in defendant Dennis P. Riley’s Special Interrogatories, Set Two, that comply with Code of Civil Procedure sections 2030.220 and 2030.250, within 20 days of the date of this order.

The court grants defendant Dennis P. Riley’s request for sanctions against plaintiff Madeline Moore in the amount of $1,860.00. (Code Civ. Proc., 2030.300, subd. (d).) The court orders plaintiff Madeline Moore to pay sanctions in the amount of $1,860.00 to defendant Dennis P. Riley.

The court denies Defendants’ motion to compel production of documents at deposition. (Code Civ. Proc., 2025.480, subd. (a).)

The court orders defendant Dennis P. Riley to give notice of this order.

IT IS SO ORDERED.

DATED: June 29, 2022

Robert B. Broadbelt III

Judge of the Superior Court



Case Number: ****5258    Hearing Date: September 28, 2020    Dept: 47

Madeline Moore, individually and as Successor Trustee of the Moor Family Trust dated June 1, 1983 v. Dennis P.

Riley, et al.

 

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

MOTION FOR SUMMARY ADJUDICATION OF SECOND AFFIRMATIVE DEFENSE OF STATUTE OF LIMITATIONS

MOVING PARTY: Plaintiff Madeline Moore

RESPONDING PARTY(S): Defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that her mother’s attorney and CPA advised Plaintiff’s mother to engage in unnecessary transfers of Trust assets that had significant tax consequences for the Trust that could have been avoided, but which generated fees for the attorney and CPA. Plaintiff then retained the professional services of the Defendant attorneys, who allegedly committed legal malpractice in prosecuting claims against the attorney and CPA in the handling of the case, which caused her to settle for less than she was entitled to recover.

In his first amended cross-complaint, Defendant/Plaintiff Roger B. Frederickson alleges breach of contract and quantum meruit based on Plaintiff/Defendants Madeline Moore’s failure to pay his fees and costs incurred in representing her totaling $44,224.29.

Plaintiff moves for summary adjudication of Defendants’ statute of limitations defense.

TENTATIVE RULING:

Plaintiff Madeline Moore’s motion for summary adjudication of the second affirmative defense of the statute of limitations is GRANTED as to Mesisca, Riley & Kreitenberg LLP (Issue No. 1) and GRANTED as to Dennis P. Riley (Issue No. 2).

DISCUSSION:

Motion for Summary Adjudication

Plaintiff’s Request for Judicial Notice

Plaintiff requests judicial notice of (1) the court docket in the underlying litigation; (2) the order entered July 26, 2016 in the underlying litigation relieving Riley as counsel for Plaintiff; (3) Plaintiff’s motion in limine no. 1 in the underlying litigation; (4) Plaintiff’s motion in limine no. 2 in the underlying litigation; (5) Plaintiff’s complaint in this action; (6) Plaintiff’s first amended complaint; (7) a minute order in this action dated April 4, 2018; and (8) Defendants’ answer to the first amended complaint.

The request is GRANTED as to Nos. 2 through 6 and 8 per Evidence Code ; 452(d) (court records).

The request is DENIED as to Nos. 1 and 7, which are not relevant to the resolution of this motion. “Although a court may judicially notice a variety of matters . . . , only relevant material may be noticed.” (Mangini v. R.J. Reynolds Tobacco Co. (2007) 7 Cal.4th 1056, 1063; Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Plaintiff’s Evidentiary Objections

Pursuant to CCP ; 437c(q), the Court rules only upon objections to evidence that the Court deems material to the disposition of this motion.

Declaration of Dennis P. Riley and Attached Exhibits

No. 2: OVERRULED. It is reasonably possible that this testimony will be admissible at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

Nos. 3-4, 8: OVERRULED. It is reasonably possible that these emails would be admissible and could be authenticated at trial. (Ibid.)

No. 5: OVERRULED. The document may be authenticated at trial. (Ibid.)

No. 14: OVERRULED. Not irrelevant, prejudicial, vague, conclusory, or inadmissible lay opinion.

Defendants’ Evidentiary Objections

Pursuant to CCP ; 437c(q), the Court rules only upon objections to evidence that the Court deems material to the disposition of this motion. None of Defendants’ evidentiary objections were material to the disposition of this motion, and therefore the Court declines to rule on them.

Analysis

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. Atl. 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.)

When deciding whether to grant summary judgment or adjudication, 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. (Ibid.)

Issue No. 1: “As a matter of law the MRK Defendants’ second affirmative defense of the statute of limitations has no merit.”

Plaintiff seeks summary adjudication that the “MRK Defendants’” second affirmative defense of the statute of limitations has no merit. The “MRK Defendants” are Mesisca, Riley & Kreitenberg LLP (“MRK”) and Attorney Dennis P. Riley, yet Plaintiff states a separate issue as to Attorney Dennis P. Riley’s statute of limitations defense. (Plaintiff’s Separate Statement of Undisputed Material Facts (“UMF”) Nos. 11-16.) Thus, the Court will assume that this issue is intended to encompass only MRK’s statute of limitations defense.

“Although resolution of a statute of limitations defense normally poses a factual question reserved to the trier of fact, summary adjudication will nonetheless be proper ‘if the court can draw only one legitimate inference from uncontradicted evidence regarding the limitations question.’” (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 292.)

The parties do not dispute that a one-year statute of limitations applies to an action against an attorney for the attorney’s wrongful act or omission arising in the performance of legal services. (CCP ; 340.6(a).) It is also undisputed[1] that Plaintiff filed the complaint on June 15, 2017. (Defendants’ Separate Statement (“SS”) No. 4.) Thus, Plaintiff’s action had to accrue no earlier than June 15, 2016, unless some form of tolling applies, to render Defendants’ statute of limitations defense inapplicable.

Plaintiff argues that the earliest date on which the action could have accrued is July 25, 2016, because MRK continued to do “substantive work” for her through that date. (Motion, at p. 6.) In other words, she argues that MRK’s “continuous representation” of her tolled the statute of limitations through July 25, 2016.

Under the “continuous representation” rule, the applicable statute of limitations is tolled while the “attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (CCP ; 340.6(a)(2).) This is true even if the “client is aware of the attorney’s negligence.” (Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 28.)

[T]he purposes of tolling based on continuous representation are “to ‘avoid the disruption of an attorney-client relationship by a lawsuit while enabling the attorney to correct or minimize an apparent error, and to prevent an attorney from defeating a malpractice cause of action by continuing to represent the client until the statutory period has expired.’ ” The latter purpose reflects the understanding that a client who relies on an attorney ordinarily is not able to evaluate the attorney's professional services and should be entitled to rely on the attorney's competence and good faith while the representation continues.

(Ibid.)

An attorney's representation of a client ordinarily ends when the client discharges the attorney or consents to a withdrawal, the court consents to the attorney's withdrawal, or upon completion of the tasks for which the client retained the attorney. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 887–888, 110 Cal.Rptr.2d 877; Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1497, 35 Cal.Rptr.2d 169; 3 Mallen & Smith, Legal Malpractice (2006 ed.) Statutes of Limitations, ; 22.13, p. 385.) Some authorities state that the representation also ends if the attorney withdraws unilaterally without the consent of either the client or a court, despite any breach of duty, if the client actually has or reasonably should *29 have no expectation of further services.

(Id. at 28–29.)

[I]n the event of an attorney's unilateral withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. . . . That may occur upon the attorney's express notification to the client that the attorney will perform no further services, or, if the attorney remains silent, *31 may be inferred from the circumstances. Absent actual notice to the client that the attorney will perform no further legal services or circumstances that reasonably should cause the client to so conclude, a client should be entitled to rely on an attorney to perform the agreed services and should not be required to interrupt the attorney-client relationship by filing a malpractice complaint. After a client has no reasonable expectation that the attorney will provide further legal services, however, the client is no longer hindered by a potential disruption of the attorney-client relationship and no longer relies on the attorney's continuing representation, so the tolling should end. To this extent and for these reasons, we conclude that continuous representation should be viewed objectively from the client's perspective . . . .

(Id. at 30–31, footnotes omitted.)

Thus, the rule that we have stated allows the client, consistent with the purposes of the continuing representation rule, to avoid the disruption of an attorney-client relationship that would result from the filing of a malpractice action, but only as long as the client actually and reasonably believes that the representation is continuing. Whether the client actually and reasonably believed that the attorney would provide further legal services regarding a specific subject matter is predominantly a question of fact for the trier of fact, but can be decided as a question of law if the undisputed facts can support only one conclusion.

(Id. at 31.)

In support of her argument that the statute of limitations was tolled by MRK’s continuous representation of her, Plaintiff presents evidence that MRK served and filed two motions in limine on her behalf in the underlying action on July 18, 2016, along with billing records indicating that MRK attorneys billed time to Plaintiff’s matter through July 25, 2016. (UMF Nos. 8, 9; Declaration of Leonard Steiner ¶¶ 8, 10 & Exhs. 6, 8, 9.) Defendant argues that whether it continued to represent Plaintiff is a “conclusion of law, not an evidentiary fact,” which may or may not necessarily be true. Plaintiff has presented evidence regarding the continued representation, as cited above. With this evidence, Plaintiff has met her initial burden of demonstrating that MRK’s statute of limitations defense is not viable by presenting evidence that MRK continued to do substantive work in the underlying action through July 25, 2016. Therefore, the burden shifts to MRK to raise a triable issue of material fact at to the continuing representation issue.

In its opposing separate statement, MRK does not cite any admissible evidence that raises a triable issue of material fact as to Plaintiff’s undisputed material facts; it only raises evidentiary objections or argues that they are conclusions and not evidentiary facts. MRK does, however, present “additional material facts” in support of its opposition. MRK presents evidence, for example, that Plaintiff consulted with other attorneys by May 31, 2016 regarding financial implications “should she decide to terminate” MRK and that she had decided to do so by that date. (Defendants’ Additional Material Fact (“AMF”) Nos. 23, 25; Carsel Depo. (COE pp. 31-32); May 31, 2016 emails (COE pp. 54, 56-57).) MRK also presents evidence that another attorney had reached out to a legal malpractice attorney between June 10, 2016 and June 13, 2016 on Plaintiff’s behalf. (AMF No. 30; Carsel Depo. (COE pp. 50-52; Carsel & Frederickson Invoice (COE pp. 59-60).) In addition, MRK presents evidence that Plaintiff and her representatives did not speak with MRK regarding the underlying action after June 14, 2016. (AMF No. 36; June 21, 2016 email (COE p. 101).) MRK also characterizes the work that it did for Plaintiff after June 13, 2016 as “only limited services considered time-sensitive or subject to deadlines to avoid prejudice to Moore.” (AMF No. 42; Riley Decl. ¶ 21.)

This Court is mindful of its obligation to “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. Moreover, this Court is aware of its duty not to weigh or to judge the credibility of the witnesses.

However, this duty is not necessarily absolute. As discussed supra, any evidence proffered by the opposing party still must be specific and “substantial” in nature in order to create a triable issue of material fact. It cannot be “speculative.” The inferences required to be taken must be “reasonable.” See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

The simple undisputed fact remains that MRK did provide legal services and continued legal representation to the Plaintiff involving the same subject matter within one year of the filing of the Complaint. Whether this was done by MRK to “protect her [Plaintiff’s] rights,” or whether it was done under the cloud of Plaintiff’s intent to either fire and/or sue MRK for the alleged malpractice is of no real consequence. It was, in fact, done. The series of events proffered by MRK in its AMF does not create a triable issue of material fact as to whether MRK was still representing the Plaintiff at the time they filed those pre-trial documents on July 18, 2016. It is undisputed as a matter of law that MRK was actually continuing to represent the Plaintiff in the subject matter case at that time, whether they wanted to or not.

Accordingly, the motion for summary adjudication is GRANTED as to Issue No. 1.

Issue No. 2: “As a matter of law the [sic] Riley’s second affirmative defense of statute of limitations has no merit.”

As to individual defendant Attorney Dennis P. Riley, a different calculation applies.

“If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.” (CCP ; 351 [held unconstitutional only as to residents who travel in the course of interstate commerce].)

Here, Plaintiff has presented evidence that Defendant Riley was absent from California for non-business-related reasons from April 7, 2017 to April 23, 2017. (Plaintiff’s UMF No. 15.) Pursuant to CCP ; 351, the statute of limitations was therefore tolled for that fifteen-day period.

Defendant does not dispute that he was absent from California for non-business-related reasons during this period. (Defendant’s SS No. 15.) Therefore, even if the statute of limitations began to run as of the earliest date Defendant appears to argue – May 31, 2016 – the statute of limitations being tolled for fifteen days means that Plaintiff’s action was timely as a matter of law as to Defendant Riley.

Accordingly, the motion for summary adjudication is GRANTED as to Issue No. 2.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 28, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.


[1] This is undisputed in Defendants’ separate statement, but they erroneously state that the complaint was filed on June 17, 2016 in their opposition. (Oppo., at p. 5 n.2.) Even if they meant 2017, the day is also incorrect, since the complaint was filed on June 15, not June 17.



Case Number: ****5258    Hearing Date: September 11, 2020    Dept: 47

Long Beach Memorial Medical Center v. North American Risk Services, Inc., et al.

 

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

(1) MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED; REQUEST FOR MONETARY SANCTIONS; (2) MOTION TO COMPEL SPECIAL INTERROGATORIES, FORM INTERROGATORIES, AND REQUEST FOR DOCUMENTS; REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: (1)-(2) Defendant North American Risk Services, Inc.

RESPONDING PARTY(S): No opposition on eCourt as of September 8, 2020.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for enforcement of a hospital lien held by Plaintiff for medical expenses incurred in caring for its patient Jeffrey R. Milan that Defendant has not paid.

Defendant has filed a cross-complaint against the patient and others, alleging that they have a duty to indemnify it.

Defendant seeks to deem RFAs admitted and to compel various forms of discovery.

TENTATIVE RULING:

If Defendant can show that it provided Plaintiff with proper notice of this hearing date, and if not mooted prior to the commencement of the hearing, and if Defendant promptly corrects its failure to sign the motion, Defendant North American Risk Services, Inc.’s motion to deem requests for admission (set one) admitted is GRANTED.

If Defendant can show that it provided Plaintiff with proper notice of this hearing date, and if not mooted prior to the commencement of this hearing, Defendant’s motion to compel responses to special interrogatories, form interrogatories, and requests for documents is GRANTED IN PART as to form interrogatories (set one) only. Plaintiff is to provide responses to the form interrogatories (set one), without objection, within 30 days of the date of this order.

Defendant’s requests for sanctions in connection with both motions are DENIED.

DISCUSSION:

Motion to Deem RFAs Admitted

Unsigned Motion

Defendant’s motion is unsigned, contrary to CCP ; 128.7. The notice is signed but the motion itself is not. (Motion, at p. 6.) “An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (CCP ; 128.7(a).)

Accordingly, now that the Court has called this to Defendant’s attention, it must promptly correct this mistake. If it cannot, Defendant’s motion must be stricken.

Analysis

When a party to whom requests for admission are directed fails to respond, the party propounding the requests may move for an order that the truth of any matters specified in the requests be deemed admitted. (CCP ; 2033.280(b).) “The court shall make this order [deem the requests admitted], unless it finds that the party to whom the request for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with section 2033.220.” (CCP ; 2033.280(c).)

Here, the requests for admission (set one) were served by mail on April 2, 2020, and responses were therefore due by May 7, 2020. (Declaration of Kyle P. Carroll ¶ 4 & Exh. A.) When Plaintiff did not respond, the parties met and conferred, and Defendant offered an extension through May 22, 2020, but Plaintiff did not respond by that date. (Id. ¶ 5 & Exh. B.) As of the date of the filing of this motion, Defendant had not received any responses. (Id. ¶ 5.)

Therefore, if not mooted prior to the hearing, the motion to deem matters in RFAs (set one) admitted will be GRANTED – if Defendant can show that it gave Plaintiff proper notice of this hearing date once it was scheduled. Defendant was ordered to do so on June 10, 2020 but did not file any proof of service indicating that it did so.

In its notice of motion, Defendant purports to seek sanctions against “Plaintiffs,” even though there is only one Plaintiff, and Defendant also requests sanctions against “Plaintiff” in its supporting declaration. (Id. ¶ 7.) Due process requires that Defendant “identify every . . . party against whom the sanction is sought.” (CCP ; 2023.040.) Moreover, there is no indication here that Plaintiff, and not its attorney, was responsible for the failure to respond. Indeed, the facts suggest that counsel and not Plaintiff was responsible, given that Plaintiff’s counsel failed to provide responses or to explain why responses were not being provided. Accordingly, this request is DENIED.

Motion To Compel Special Interrogatories, Form Interrogatories, and Requests for Documents

Three Motions in One

Defendant has combined three motions into one: (1) a motion to compel responses to form interrogatories (set one), (2) a motion to compel responses to special interrogatories (set one), and (3) a motion to compel responses to inspection requests (set one).

Three separate hearings should have been reserved for these three motions to compel. In the future, Defendant is ordered to obtain separate hearing reservations and pay separate filing fees. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System (when available) and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

The Court will proceed to consider only one of these motions—the motion to compel responses to form interrogatories (set one).

Motion To Compel Form Interrogatories

When a party to whom interrogatories are directed fails to respond, a party propounding the interrogatories may move for an order compelling a response. (CCP ; 2030.290(b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (CCP ; 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)

Here, Defendant served the form interrogatories (set one) by mail on April 2, 2020, making the responses due initially on May 7, 2020. (Declaration of Kyle P. Carroll ¶ 4 & Exh. B.) Defendant then provided Plaintiff with an extension through May 22, 2020. (Id. ¶ 5 & Exh. D.) As of the date of the filing of this motion, however, Defendant had not received any responses to the form interrogatories (set one). (Id ¶ 5.)

Plaintiff has not opposed this motion in a timely manner or otherwise indicated that it has now provided code-complaint responses.

Accordingly, if not mooted prior to the commencement of the hearing, the motion to compel is GRANTED as to form interrogatories (set one) – if Defendant can show that it gave Plaintiff proper notice of this hearing date once it was scheduled, as it was ordered to do on June 10, 2020. If so, Plaintiff is to provide responses, without objection, within 30 days of the date of this order.

Defendant’s request for sanctions is DENIED. In light of the impropriety of Defendant’s three-in-one motion and the corresponding request for sanctions for three separate motions in one, the Court finds that sanctions are not justified in the “interest of justice.”

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 11, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.



Case Number: ****5258    Hearing Date: March 05, 2020    Dept: 47

Madeline Moore, individually and as Successor Trustee of the Moor Family Trust dated June 1, 1983 v. Dennis P.

Riley, et al.

 

MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

MOVING PARTY: Defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg

RESPONDING PARTY(S): Plaintiff Madeline Moore

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that her mother’s attorney and CPA advised Plaintiff’s mother to engage in unnecessary transfers of Trust assets that had significant tax consequences for the Trust that could have been avoided, but which generated fees for the attorney and CPA. Plaintiff then retained the professional services of the Defendant/attorneys, who allegedly committed legal malpractice in prosecuting claims against the attorney and CPA in the handling of the case, which caused her to settle for less than she was entitled to recover.

In his first amended cross-complaint, Defendant/Cross-Complainant Roger B. Frederickson alleges breach of contract and quantum meruit based on Plaintiff/Cross-Defendants Madeline Moore’s failure to pay his fees and costs incurred in representing her totaling $44,224.29.

Defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg move for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING:

Defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg’s motion for summary judgment is DENIED.

Defendants’ alternative motion for summary adjudication is GRANTED as to the first cause of action for professional negligence and DENIED as to the second cause of action of breach of fiduciary duty.

DISCUSSION:

Motion for Summary Judgment

As discussed below, Defendants have not demonstrated that they are entitled to prevail as to each cause of action asserted against them. Accordingly, the motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Motion for Summary Adjudication

Request for Judicial Notice

Defendants request that the Court take judicial notice of (1) the First Amended Complaint in this action; (2) Defendants’ notice of ruling re: their demurrer and motion to strike in this action; (3) the substitution of attorney of Dennis P. Riley filed in CV130156; (4) the substitution of attorney of Dennis P. Riley filed in CV130373; (5) the First Amended Complaint filed in CV130156; (6) the First Amended Complaint filed in CV130373; (7) the Order granting motion to be relieved as counsel in consolidated cases CV130156 and CV130373; (8) the motion in limine to exclude or limit the testimony of Plaintiff’s expert witness Alan D. Wallace at trial filed in consolidated cases CV130156 and CV130373; and (9) the opposition to the motion in limine to exclude or limit the testimony of Plaintiff’s expert witness filed in consolidated cases CV130156 and CV130373. These requests are GRANTED per Evidence Code ; 452(d) (court records).

Plaintiff’s Evidentiary Objections

Pursuant to CCP ; 437c(q), the Court rules only upon objections to evidence that the Court deems material to the disposition of this motion.

Declaration of Jonathan M. Starre

No. 1: OVERRULED. The objection that an exhibit was not attached is also moot, given that Plaintiff provided the exhibit in opposition.

No. 6: OVERRULED. Document may be authenticated before trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

Defendants’ Evidentiary Objections

Pursuant to CCP ; 437c(q), the Court rules only upon objections to evidence that the Court deems material to the disposition of this motion.

In addition, although Defendants did not properly number their evidentiary objections consecutively as required by CRC Rule 3.1354(b), referring to the paragraph numbers in the declarations instead, the Court will opt to rule on the material objections, while noting that Defendants have consistently violated the applicable procedural rules in connection with this motion – something Defendants accused of legal malpractice might do their best to avoid.

Declaration of Madeline Moore

No. 77: OVERRULED. Not opinion testimony or unqualified expert opinion about what an expert is needed for.

No. 80: SUSTAINED. The deposition transcript speaks for itself.

No. 83: OVERRULED. Not opinion testimony or unqualified expert opinion.

No. 90: OVERRULED. Not inadmissible hearsay.

No. 91: OVERRULED. This testimony may be authenticated at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

No. 92: OVERRULED. This testimony may be authenticated at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.) Not improper opinion testimony or unqualified expert opinion.

Declaration of Richard Carsel

The evidence objected to was not material to the disposition of the motion.

Declaration of Leonard Steiner

The evidence objected to was not material to the disposition of the motion.

Analysis

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. Atl. 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.)

When deciding whether to grant summary judgment or adjudication, 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. (Ibid.)

When a defendant seeks summary adjudication of a cause of action, it must show, by a preponderance of the evidence, 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. (CCP ; 437c(p)(2).) Once the defendant has met this burden, the burden shifts to the plaintiff to show the existence of a triable issue of fact regarding that element of the cause of action or that defense. (Ibid.) If the plaintiff cannot do so, the defendant is entitled to judgment as a matter of law. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) On the other hand, if the defendant fails to meet its burden, the motion must be denied, and the plaintiff need not make any showing at all. (Ibid.)

Procedurally, Defendants’ motion for summary adjudication does not comply with CRC Rule 3.1350, which provides that “the specific cause of action . . . must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (CRC 3.1350(b) (bold emphasis added).) The separate statement must also “separately identify” each “cause of action . . . that is the subject of the motion.” (CRC 3.1350(d)(1)(A) (bold emphasis added).) Defendants’ notice does mention the two causes of action as to which they seek summary adjudication, but parties seeking summary adjudication routinely number the issues and state them in full sentences, rather than leaving it to the Court to articulate the issues. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 10:87.1 [“PRACTICE POINTER: The preferred practice is to state the claim or defense in language appropriate for adoption by the court if the motion is granted. For example: ‘[Issue No. 1] Plaintiff’s Third Cause of Action Has No Merit: Defendant seeks summary adjudication that plaintiff’s Third Cause of Action for breach of contract has no merit because there is no evidence that defendant ever accepted plaintiff’s offer.’”].)

As for Defendants’ separate statement, it does not comply with CRC 3.1350, given that it lumps all of the facts together and claims, in a footnote, that all of the facts supporting summary judgment are the same as the facts supporting “summary judgment of each cause of action.” (Defendants’ Separate Statement, p. 2 n. 2.) First, there is no such thing as summary “judgment” of a cause of action, unless there is only one cause of action. Summary “judgment” applies only when the entire “action has no merit” as to the moving defendant. (CCP ; 437c(a)(1).) Second, this footnote does not “separately identify” each cause of action and the facts supporting Defendants’ argument as to each cause of action, as required by the rule. (See also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 10.96.7 [PRACTICE POINTER: Where ‘undisputed facts’ pertain to more than one claim, issue or defense, these facts (together with the supporting evidence) should be repeated for each issue (bold emphasis added)].) Of course, lumping everything together in this way benefits Plaintiff more than Defendants, given that any single dispute of material fact will lead to a denial of the entire motion, whether or not that fact really relates to each cause of action at issue.

The Court also notes that Defendants’ most frequent response to Plaintiff’s disputed facts is that those facts are “disputed by immaterial.” If that is the case, then Defendants should not have included them in their separate statement of material facts. The separate statement should include only those facts that are material to the motion. Otherwise, again, Defendants are risking that the Court will find a dispute of material fact where none would have existed if Defendants had been more thoughtful about the facts they included.

In any case, given that Plaintiff did not object to any of these procedural deficiencies, the Court will consider the merits of the motion.[1]

Issue No. 1: Summary Adjudication of Plaintiff’s First Cause of Action for Professional Negligence (Legal Malpractice)

Defendants argue that they are entitled to summary adjudication of Plaintiff’s first cause of action for professional negligence (legal malpractice) because Plaintiff cannot prove causation or damages to a legal certainty.

To state a cause of action for legal malpractice, a plaintiff must plead “(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.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 [108 Cal. Rptr. 2d 471, 25 P.3d 670].)  To show damages proximately caused by the breach, the plaintiff must allege facts establishing that, “but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 [135 Cal. Rptr. 2d 629, 70 P.3d 1046]; see Judicial Council of Cal. Civ. Jury Instns. (2006) CACI No. 601 [plaintiff must prove he or she “would have obtained a better result if [defendant] had acted as a reasonably careful attorney”].)

(Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179 (bold emphasis and underlining added).)

In a typical professional negligence case against a litigation attorney, a determination of the merits of the underlying lawsuit must be made in order to adjudicate the elements of causation and damages. (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357 [89 Cal. Rptr. 3d 710] (Blanks).) The plaintiff is required to prove that but for the defendant’s misconduct, “ ‘the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.’ ” (Ibid., quoting Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [135 Cal. Rptr. 2d 629, 70 P.3d 1046].) “This method of presenting a legal malpractice lawsuit is commonly called a trial within a trial. It may be complicated, but it avoids speculative and conjectural claims.” (Blanks, at p. 357.) “The trial-within-a-trial method does not ‘recreate what a particular judge or fact finder would have done. Rather, the jury’s task is to determine what a reasonable judge or fact finder would have done ….’ [Citation.] Even though ‘should’ and ‘would’ are used interchangeably by the courts, the standard remains an objective one. The trier of facts determines what should have been, not what the result would have been, or could have been, or might have been, had the matter been before a particular judge or jury.” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 840 [60 Cal. Rptr. 2d 780]; accord, Blanks, supra, 171 Cal.App.4th at p. 357).

(Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 934.)

Breach of duty causing only speculative harm is insufficient to create such a cause of action. (Budd v. Nixen [(1971)] 6 Cal. 3d [195,] 200 [98 Cal. Rptr. 849, 491 P.2d 433].) “‘Damages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable. [Citation.]’ (In re Easterbrook (1988) 200 Cal. App. 3d 1541, 1544 [244 Cal. Rptr. 652] [disapproved on other grounds in People v. Romero (1994) 8 Cal. 4th 728, 744, fn. 10 [35 Cal. Rptr. 2d 270, 883 P.2d 388]].) Neither appellant’s complaint nor his documentation opposing respondents’ motion for summary judgment state[s] any facts demonstrating actual damage resulting from respondents’ delay in handling the underlying action.” (Thompson v. Halvonik, supra, 36 Cal. App. 4th at pp. 661-662; see also Campbell v. Magana (1960) 184 Cal. App. 2d 751, 758 [8 Cal. Rptr. 32]; Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130-131 [39 Cal. Rptr. 2d 658].)

(Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518-19.)

Here, Defendants argue that Plaintiff cannot prove but-for causation and damages because she bases her professional negligence cause of action on Defendants’ reliance on an expert witness whose testimony she expected to be excluded, but she settled the underlying action before that court had ruled on the motion in limine to exclude the expert. Thus, Defendants argue that Plaintiff’s claimed damages are entirely speculative.

In the first cause of action, Plaintiff alleges that the moving Defendants and others violated their professional duty and standard of care “by, among other things,” the following acts, errors, and/or omissions:

the improper designation by RILEY of WALLACE as plaintiff’s liability expert in the litigation; the failure or [sic] RILEY and FREDERICKSON to properly prepare WALLACE for his deposition and to provide WALLACE with the documents needed for him to render his opinions; . . . and the failure of the Attorneys to take any steps necessary, such as without limitation, the filing of a motion, to correct the improper designation of WALLACE in the Litigation and to substitute in his stead a properly qualified and prepared expert liability witness.

(1AC ¶ 26.)

Though Defendants’ separate statement is bloated with facts that they now claim are “immaterial,” their central argument is that Plaintiff does not contend that Wallace’s designation compromised any of her claims or that she could not prevail in the underlying action as a result of his designation. (Defendants’ Separate Statement (“SS”) No. 30.) Nor does she contend that his testimony would have been excluded at trial. (Ibid.) Rather, in her responses to special interrogatories, Plaintiff states, as the basis of her alleged damages caused by Defendants’ negligence, only that she settled the underlying action because her successor counsel advised her she could not win because of the improper expert designation of Wallace. (Ibid.; Compendium of Evidence (“COE”), at pp. 224-234.) Defendants have also presented evidence that Plaintiff’s successor counsel initially recommended that Plaintiff reject a settlement offer and advised that Wallace would be able to testify to the defendants’ breaches of their fiduciary duties in the underlying action. (Defendants’ SS Nos. 35, 36.) After the filing of a motion in limine seeking to exclude Wallace’s testimony and an opposition to the motion, Plaintiff’s successor counsel advised her to take the settlement offer. (Defendants’ SS No. 39.) Plaintiff did so, however, before the court had ruled on the motion in limine to exclude Wallace. (Defendants’ SS No. 42-44.)

With this evidence, Defendants have met their initial burden of demonstrating that Plaintiff cannot show but-for causation and damages. The Court in the underlying action never actually ruled on the challenge to Wallace’s testimony, and therefore Plaintiff cannot show damages based on any potential that his testimony might have been excluded.

Because Defendants have met their initial burden, the burden shifts to Plaintiff to raise a triable issue of material fact. In her opposing separate statement, Plaintiff has not cited any admissible evidence that raises a triable issue of material fact as to causation or damages. For example, Plaintiff disputes the fact that she does not contend that the designation of Wallace as an expert actually compromised any of her claims or that he would have been excluded, but she explains only that both of her successor attorneys in the underlying action advised her to settle, at least in part, because they viewed the designation of Wallace as an expert as improper. (Plaintiff’s Responsive Separate Statement of Undisputed Fact (“UF”) No. 30. Plaintiff either does not dispute or raises evidentiary objections to the other key evidence discussed above.

Plaintiff also presents additional facts in support of her opposition, but none of these additional facts numbered 45 through 207 raise a disputed issue of material fact as to whether Defendants’ designation of Wallace as an expert caused her damage. Had Plaintiff alleged that Defendants committed legal malpractice in other ways and presented evidence to that effect, Plaintiff might have been able to show that there are questions of material fact precluding summary adjudication. Here, however, as noted above, the 1AC alleges Defendants’ malpractice based only on the designation of Wallace as an expert. (1AC ¶ 26.) Plaintiff’s discovery responses and response to Defendants’ separate statement likewise focus on their designation of Wallace as an expert. (Plaintiff’s UF No. 30.)

This Court is mindful of its obligation to “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Moreover, this Court is aware of its duty not to weigh or judge the credibility of the witnesses. However, this duty is not necessarily absolute. Any evidence proffered by the opposing party still must be specific and “substantial” in nature to create a triable issue of material fact. It cannot be “speculative.” The inferences required to be taken must be “reasonable.” (See, e.g., Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635.) Here, Plaintiff’s evidence does not constitute “substantial” evidence from which a trier of fact could find that Defendants’ actions caused her damages.

Because Plaintiff has failed to meet her burden of demonstrating that a triable issue of material fact exists as to causation or damages, Defendants’ motion for summary adjudication is GRANTED as to Issue 1.

Issue No. 2: Summary Adjudication of Plaintiff’s Second Cause of Action for Breach of Fiduciary Duty

Defendants argue that they are entitled to summary adjudication of Plaintiff’s second cause of action for breach of fiduciary duty for the same reason that they are entitled to summary adjudication of the first cause of action: that Plaintiff cannot show causation and damages to a legal certainty.

[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence. ( Barbara A. v. John G. (1983) 145 Cal. App. 3d 369, 382-383 [193 Cal. Rptr. 422]; cf. Budd v. Nixen (1971) 6 Cal. 3d 195, 200 [98 Cal. Rptr. 849, 491 P.2d 433] [elements of cause of action for professional negligence].) The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. ( Pierce v. Lyman (1991) 1 Cal. App. 4th 1093, 1101 [3 Cal. Rptr. 2d 236].)

(Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

Although causation and damages are mandatory elements of breach of fiduciary duty, Plaintiff’s breach of fiduciary duty claim is not based on the same operative facts as her professional negligence claim. In the 1AC, Plaintiff alleges that Defendants had a duty, among other things, “not to bill plaintiff for unnecessary work” and “not to charge plaintiff unreasonable and unconscionable fees,” as well as a duty to “keep plaintiff timely informed of all significant developments in the litigation.” (1AC ¶ 29.) These are not the same bases for Plaintiff’s professional negligence claim, and “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

Of course, in all of the 162 “additional” material facts Plaintiff presents in her separate statement, exactly zero of them relate in any way to these allegations of overbilling or intentional churning of fees. Indeed, to the extent that Plaintiff’s additional facts relate to Defendants at all, they relate to the designation of Wallace as an expert. Nevertheless, it was not Plaintiff’s burden to come forward with those facts if Defendants did not meet their burden, which they did not, as they did not even attempt to do so as to these billing allegations. The pleadings govern the relevant issues on a motion for summary judgment or adjudication, and here Defendants did not address Plaintiff’s allegations regarding billing or show by a preponderance of the evidence that the facts are undisputed that they did not breach their fiduciary duties not to overbill Plaintiff or charge unreasonable fees. Indeed, the discovery responses Defendants rely upon are related to Plaintiff’s “contention that the MRK Defendants’ negligence caused her harm,” not that they breached their fiduciary duties to her. (Defendants’ SS No. 30.) Perhaps that is another reason it would have behooved Defendants to separate out the facts relevant to each of the causes of action. Had they done so, they might have realized that their proof was deficient as to the breach of fiduciary duty.

Exactly two of Plaintiff’s 162 additional facts do relate to her allegation that Defendants failed to keep her timely informed of significant developments in the litigation. (Plaintiff’s UF Nos. 187, 194.) To the extent that this cause of action is based on that allegation, Defendants admit that there are disputes of fact as to whether they kept Plaintiff informed. (Defendants’ Response to Plaintiff’s SS, No. 194 [claiming that these facts are “Disputed, and immaterial”]. Defendants viewed these facts as immaterial because they viewed them only through the lens of the allegations as to Wallace, not through the lens of Plaintiff’s breach of fiduciary duty allegations.

It pains the Court to note that Plaintiff herself did not make this argument in opposition to the motion for summary adjudication of this cause of action. Fortunately for Plaintiff, however, it was not her burden to do so. If Plaintiff no longer intends to pursue this line of argument in connection with her second cause of action, then Defendants likely would have been entitled to summary adjudication of this cause of action as well. They did not, however, make any attempt to show that Plaintiff’s breach of fiduciary duty claim is now limited solely to the allegations regarding the designation of Wallace as an expert witness.

The motion for summary adjudication as to the second cause of action for breach of fiduciary duty is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 5, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org


[1] Plaintiff does argue that Defendants cannot seek summary judgment because the motion “does not dispose of all causes of action of all parties, including all cross-complaints.” (Oppo., at p. 1 n. 1.) That is incorrect, according to Plaintiff’s own concession. Plaintiff concedes that the only causes of action against the moving Defendants are the two causes of action as to which they are seeking summary adjudication. (Plaintiff’s Separate Statement No. 1.) This is despite the fact that it appears that Plaintiff’s ninth cause of action continues to be viable against all Defendants and that might have provided an independent basis to deny Defendants’ motion for summary judgment. Nevertheless, if, as Plaintiff concedes, Defendants are seeking summary adjudication of the only causes of action against them, they are entitled to summary judgment. (CCP ; 437c(a)(1).) They need not dispose of causes of action that were not brought against them. In addition, even if they were parties to cross-complaints, they are not required to seek summary judgment as to those cross-complaints.



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