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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

MOORE MADELINE

Defendants and Respondents

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

Plaintiff and Petitioner Attorneys

STEINER LEONARD ESQ.

STEINER LEONARD SAMUEL

Defendant and Respondent Attorneys

GRETCHEN S. CARNER

MCCARTHY & KROES LAW OFFICES OF

VOLGER MICHAEL J.

NEMECEK FRANK W. ESQ.

FELDMAN KENNETH C. ESQ.

CARNER GRETCHEN SIGRIDUR

VOGLER MICHAEL JOHN

MCCARTHY PATRICK

NEMECEK FRANK WYNN

Other Attorneys

FREDERICKSON LAW GROUP

MICHAEL J. VOGLER

 

Court Documents

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

Minute Order

10/3/2018: Minute Order

Proof of Service by Mail

10/23/2018: Proof of Service by Mail

Request for Judicial Notice

11/30/2018: Request for Judicial Notice

Reply

12/17/2018: Reply

Opposition

5/17/2019: Opposition

RULING (1) DEMURRER TO COMPLAINT; (2) MOTION TO STRIKE RE: COMPLAINT

1/23/2018: RULING (1) DEMURRER TO COMPLAINT; (2) MOTION TO STRIKE RE: COMPLAINT

DEFENDANT DENNIS P RILEY AND MESISCA RILEY & KREITENBERG, LLP'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF

2/13/2018: DEFENDANT DENNIS P RILEY AND MESISCA RILEY & KREITENBERG, LLP'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF

DECLARATION OF BRIANA E. MCCARTHY IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT AGANST LEONARD STEINER AND MADELINE MOORE PURSUANT TO C.C.P. 1209(A)(5), AND REQUEST FOR SANCTIONS PURSUANT T

2/13/2018: DECLARATION OF BRIANA E. MCCARTHY IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT AGANST LEONARD STEINER AND MADELINE MOORE PURSUANT TO C.C.P. 1209(A)(5), AND REQUEST FOR SANCTIONS PURSUANT T

OPPOSITION OF PLAINTIFF AND HER COUNSEL TO ISSUANCE OF ORDER TO SHOW CAUSE RE CONTEMPT

3/6/2018: OPPOSITION OF PLAINTIFF AND HER COUNSEL TO ISSUANCE OF ORDER TO SHOW CAUSE RE CONTEMPT

Minute Order

4/5/2018: Minute Order

CROSS-COMPLAINT FOR: (1) BREACH OF WRITTEN CONTRACT; ETC.

4/16/2018: CROSS-COMPLAINT FOR: (1) BREACH OF WRITTEN CONTRACT; ETC.

CROSS-COMPLAINT OF DAVID S. HAMILTON FOR: 1. BREACH OF CONTRACT, ETC

4/18/2018: CROSS-COMPLAINT OF DAVID S. HAMILTON FOR: 1. BREACH OF CONTRACT, ETC

ANSWER OF CROSS-DEFENDANT MADELINE MOORE TO CROSS-COMPLAINT OF DAVID HAMILTON

5/29/2018: ANSWER OF CROSS-DEFENDANT MADELINE MOORE TO CROSS-COMPLAINT OF DAVID HAMILTON

NOTICE OF MOTION AND MOTION TO STRIKE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

12/1/2017: NOTICE OF MOTION AND MOTION TO STRIKE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

DECLARATION OF JONATHAN M. STARRE IN SUPPORT OF AUTOMATIC EXTENSION OF RESPONSE TIME PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(2)

10/23/2017: DECLARATION OF JONATHAN M. STARRE IN SUPPORT OF AUTOMATIC EXTENSION OF RESPONSE TIME PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(2)

PROOF OF SERVICE OF SUMMONS

10/10/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE SUMMONS

10/2/2017: PROOF OF SERVICE SUMMONS

127 More Documents Available

 

Docket Entries

  • 05/23/2019
  • Reply (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
  • Objection (Evidentiary Objections to Declaration of Dennis P. Riley); Filed by Madeline Moore (Plaintiff)

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

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

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

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  • 05/09/2019
  • at 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
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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

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

    Read MoreRead Less
  • 04/16/2019
  • at 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
  • PROOF OF SERVICE SUMMONS

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

    Read MoreRead Less
  • 09/25/2017
  • Minute Order

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

    Read MoreRead Less
  • 06/30/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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

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

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  • 06/15/2017
  • SUMMONS

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

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

    Read MoreRead Less

Tentative Rulings

Case Number: BC665258    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.