On 09/06/2017 TONY ATALLAH filed a Contract - Professional Negligence lawsuit against BURLISON LAW GROUP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GAIL FEUER and ROBERT S. DRAPER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ROBERT S. DRAPER
6007 SUNSET (LA) LLC
BURLISON ROBERT C.
DOES 1 TO 20
BURLISON LAW GROUP
CASTORINA BRYAN T. ESQ. LAW OFFICES OF
MOEST ROBERT C
GOODKIN DANIEL L. ESQ.
LARIN MICHAEL J. ESQ.
10/3/2018: Proof of Service by Mail
10/4/2018: Request for Entry of Default / Judgment
12/4/2018: Motion for Sanctions
1/10/2019: Substitution of Attorney
5/1/2018: NOTICE RE: CONTINUANCE OF HEARING
5/22/2018: SUBSTITUTION OF ATTORNEY
6/29/2018: SUMMONS ON FIRST AMENDED COMPLAINT
7/3/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
7/30/2018: Minute Order
8/13/2018: DEFENDANT BURLISON LAW GROUP AND ROBERT C. BURLISON'S NOTICE OF MOTION AND MOTION TO STRIKE; ETC.
8/13/2018: DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT BY DEFENDANTS BURLISON LAW GROUP AND ROBERT C. BURLISON; ETC.
8/13/2018: DEFENDANT BURLISON LAW GROUP AND ROBERT C. BURLISON'S REQUEST FOR JUDICIAL NOTICE ETC.
9/5/2018: REPLY IN SUPPORT OF DEFENDANT BURLISON LAW GROUP AND ROBERT C. BURLISON'S DEMURRER AND MOTION TO STRIKE FILED AGAINST PLAINTIFFS' FIRST AMENDED COMPLAINT; DECLARATION OF SERJ DANIEL
Notice of Ruling; Filed by Robert C. Burlison (Defendant); Burlison Law Group (Defendant)Read MoreRead Less
at 08:30 AM in Department 78; Hearing on Ex Parte Application ( For An Order Continuing The Trial Date; Memorandum Of Points And Authorties; Declaratiion Of Shant N. Nashalian; [Proposed] Order) - HeldRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application For An Order Continuing The ...)); Filed by ClerkRead MoreRead Less
Granting Ex Parte Application to Continue Trial; Filed by Robert C. Burlison (Defendant); Burlison Law Group (Defendant)Read MoreRead Less
Ex Parte Application (Ex Parte Application For An Order Continuing The Trial Date; Memorandum Of Points And Authorties; Declaratiion Of Shant N. Nashalian; [Proposed] Order); Filed by Robert C. Burlison (Defendant); Burlison Law Group (Defendant)Read MoreRead Less
Answer (DEFENDANTS BURLISON LAW GROUP AND ROBERT C. BURLISON'S ANSWER TO PLAINTIFFS' THIRD AMENDED COMPLAINT); Filed by Robert C. Burlison (Defendant); Burlison Law Group (Defendant)Read MoreRead Less
at 08:30 AM in Department 78; Hearing on Motion - Other (- motion for sanctions pursuant to ccp section 128.7 against pltfs Michael Atallah and Tony Atallah) - HeldRead MoreRead Less
Minute Order ( (Hearing on Motion - Other - motion for sanctions pursuant to ...)); Filed by ClerkRead MoreRead Less
Notice of Ruling ( ON DEFENDANTS, BURLISON LAW GROUP AND ROBERT C. BURLISON'S MOTION FOR SANCTIONS); Filed by Robert C. Burlison (Defendant); Burlison Law Group (Defendant)Read MoreRead Less
Order (Ruling Re: Defendants Burlison Law Group and Robert C. Burlison?s Motion for Sanctions); Filed by ClerkRead MoreRead Less
Minute order entered: 2018-01-10 00:00:00; Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
Notice of Lien; Filed by 6007 Sunset (LA) LLC (Legacy Party)Read MoreRead Less
Notice of Lien; Filed by 6007 Sunset (LA) LLC (Legacy Party)Read MoreRead Less
NOTICE LIEN (ATTACHMENT)-Read MoreRead Less
NOTICE LIEN (ATTACHMENT)-Read MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
COMPLAINT FOR NEGLIGENCE - LEGAL MALPRACTICERead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by TONY ATALLAH (Plaintiff); MICHAEL ATALLAH (Plaintiff)Read MoreRead Less
Case Number: BC674731 Hearing Date: December 03, 2019 Dept: 78
tony atallah, et al.;
burlison law group, et al.;
December 3, 2019
[TENTATIVE] RULING RE:
Defendants Burlison Law Group and Robert C. Burlison’s Motion for SUMMARY JUDGMENT
Defendants Burlison Law Group and Robert C. Burlison’s Motion for Summary Judgment is GRANTED.
This is a legal malpractice action. The Third Amended Complaint (“TAC”) alleges as follows. Plaintiffs Tony and Michael Atallah (“Plaintiffs”) retained Defendants Burlison Law Group and Robert C. Burlison (“Defendants”) to represent them in a lawsuit to enforce a a right of first refusal option to purchase the leased property contained in a commercial property lease. (TAC ¶ 27.) Defendants represented that they were competent attorneys with experience in the relevant field of law. (TAC ¶ 28.)
Defendants filed the action on Plaintiff’s behalf in November 2015, but made errors involving causes of actions and failed to advise Plaintiffs of the case’s progress. (TAC ¶¶ 32-36.) Defendants also failed to conduct discovery or hire experts and failed to pursue Plaintiff’s rights with regards to certain claims. (TAC ¶¶ 37-39.). The TAC alleges that as a result of these errors and omissions, summary judgment was entered against them in the underlying action.
Plaintiffs filed a Complaint on September 6, 2017, alleging one cause of action for legal malpractice.
Plaintiffs filed the FAC on June 29, 2018 and then filed the TAC on February 28, 2019, which is the operative complaint alleging the five causes of action:
Negligence – Legal Malpractice
Breach of Fiduciary Duty
On August 30, 2019, Defendants filed the instant Motion for Summary Judgment.n
On November 6 and 7, 2019, Plaintiffs filed their opposition Separate Statement and two Declarations in Opposition to the Motion for Summary Judgment.
On November 15, 2019 Plaintiffs filed their reply.
On November 18, 2019 Plaintiffs filed their memorandum in opposition to the motion for summary judgment and an additional declaration. This memorandum and Declaration had apparently been served on Defendants on November 7, 2019 but inadvertently not filed court. Since Defendants had apparently been in possession of these additional documents and responded to them in their reply, and since Defendants own reply was filed late, the Court granted a continuance of hearing and exercised its discretion to consider all of these papers in its ruling on this motion.
REQUEST FOR JUDICIAL NOTICE
Where a motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure §438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code § 452.)
Defendants request that this Court take judicial notice of four court filings and judgments from the underlying action.
The Court GRANTS the request for judicial notice.
On a motion for summary judgment the Court need only rule on objections material to its ruling. In this case these are objection numbers 1, 3, 5, 6, 8, 9, 10, 11 and15. Objection Number 3 is sustained. There is no foundation for Michael Attalah’s conclusory statement that Tony Atallah exercised the option. Objection numbers 1, 6 and 9 are sustained. Tony Atallah’s legal conclusions and statement of unexpressed “understanding” are irrelevant. Objection number 5 and 8 are sustained because Tony Atallah’s statements in his declaration are inconsistent with his prior sworn testimony that he never discussed the right of first refusal with LaFond and therefore are barred by the principles set forth in D’Amico and Shin v. Hahn discussed below. Objection numbers 10, 11 and 15 are sustained. Tony Attala’s statement that “I orally renewed the lease.” is an inadmissible conclusion without evidentiary value. His attempts to add to and alter his prior sworn testimony regarding the actual communications between him and LaFond on the subjects of the renewal and what the new rental rate would be are barred by the principles of D’Amico and Shin v. Hahn discussed below. His attempt to get around this problem by claiming that LaFond “sent a message through a third party” and “Blanchard Property Management” informed him the rent would stay the same is inadmissible hearsay.
MOTION FOR SUMMARY JUDGMENT
The Facts in the Underlying Action
The complaint for the underlying action alleged two causes of action: specific performance and breach of written contract. (Evid., Exh. 34, p. 1.) The complaint alleged that Plaintiffs Atallah entered into a written lease agreement for the property named “the Sunset Property” with defendants Borra LaFond Properties, Co., Keith LaFond (“Lafond”), and Steve Borra (collectively the “LaFond Defendants”). (Evid., Exh. 34, ¶ 8.) It further alleged that the lease agreement contained an option to extend the terms of the lease agreement for a period of five years plus a right of first refusal to purchase the Sunset Property. (Evid. Exh. 34, ¶ 9.)
Plaintiffs’ complaint in that action alleged that Tony Atallah (“Tony”) orally exercised the option to extend the terms of the lease for five years from July 1, 2011. The complaint alleged based on this exercise of the option that Plaintiffs had a right of first refusal to purchase the property but in breach of this right the LaFond Defendants sold the Sunset Property to a third party in April 2016. Exh. 34, ¶ 13.) The complaint alleged that Plaintiffs Atallah were entitled to specific performance of the terms of the lease agreement, and that the LaFond Defendants breached the lease agreement. (Evid., Exh. 34, ¶¶ 16-18, 20.)
The Law on Motions for Summary Judgment
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. § 437c(p)(2).) What this means in practice is that if a cause of action, such as legal malpractice, for example, requires proof of five elements, one of which is that defendant’s negligence in fact cause plaintiff’s injury, and if Defendant sets forth a prima facie case that plaintiff would have suffered the same injury even if defendant did everything plaintiff claims he did not do and even if defendant did not make the errors plaintiff alleges he made, then Defendant has met its burden.
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, must set forth specific admissible facts showing that a triable issue of material fact exists as to that cause of action or to element of that cause of action which the moving party claims cannot be proven. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Finally, since at least since D’Amico v. Board of Medical Examiners (1974) 11 Cal. 3rd 11, 21-22, the law is that in opposing a summary judgment motion, “A party cannot create an issue of fact by a declaration that contradicts his discovery responses” Shin v. Hahn (2007) 42 Cal. 4th 482, 502, fn. 17,
The Relevant Law as to All Causes of action
The causes of action alleged in the TAC are: (1) Negligence – Legal Malpractice; (2) Breach of Fiduciary Duty; (3) Fraud; (4) Intentional Misrepresentation; and (4) Negligent Misrepresentation. The elements for each cause of action are as follows.
“The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.” (Jones v. Whisenand Causation, on a motion for summary judgment, means that “but for the attorneys’ negligence the client would have prevailed in the underlying action.” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528, as modified on denial of reh'g (Oct. 12, 2006).)
Breach of Fiduciary Duty
“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.” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.)
The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) resulting damages. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)
“Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) resulting damages.” (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834 citing Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.
It is therefore clear that for all cause of action alleged by Plaintiffs, Plaintiffs must prove that some act by Defendants or failure to act by Defendants caused the damage Plaintiffs alleges. Put another way, if the undisputed facts establish that the result would have been the same even if Defendants did everything Plaintiffs claim they should have done and did not make any of the errors Plaintiffs allege they made, the motion for summary judgment must be granted. It is this single issue-causation- to which Defendants’ motion is addressed.
The Court’s September 29, 2016, order in the underlying action granting defendants’ Motion for Summary Judgment against Plaintiffs was based on three findings that the facts were undisputed and related conclusions of law based in these facts:
That the parties never agreed on a rental rate that would apply if the option was exercised and the agreement for an option to renew was therefore not a binding contract but merely an “agreement to agree.”
That there was no evidence that the option was exercised. Tony Atallah’s deposition testimony was that the only discussion on this point was a brief conversation with LaFond in which he said he intended to exercise the option, would understand if the rate was increased, and was prepared to meet that increase. The Court found that this was not a valid exercise of the option and additionally did not satisfy the requirement in the contract that the exercise of the option be in writing.
That while Plaintiffs continued to rent the property and pay rent after the lease expired and up until the time the property was sold, under the terms of the contract this changed the lease to a month to month lease and as matter of law the right of first refusal was not a term that continued after the original lease term even though Plaintiffs continued to occupy the premises on a month to month basis (Eh. 35, pp 4-5).
If there was ever a poster child for the application of the principles set forth in D’Amico and Shin, this case is surely it. For purposes of establishing a disputed issue of fact, Tony Attalah has created a series of communications with LaFond prior to the execution of the lease on how important the Right of First Refusal was to him. In his prior sworn testimony he said there were no such communications. For the same purpose, Tony Atallah has created conversations with LaFond on the renewal of the lease and the rental rate which again contradicts his prior sworn testimony that there was no agreement on the rate and that the only conversations he had with LaFond clearly did not suffice to be deemed an exercise of the option. Apparently recognizing this problem, Tony Attalah claims for the first time in plaintiff’s opposition that a third-party communicated LaFond’s agreement that the lease terms would remain the same under the extended lease. The problem with this statement is that it is offered for the truth of the matter stated and therefore barred by the hearsay rule.
Tony Atallah for purposes of this motion has also created a stream of communications with LaFond before the lease was executed regarding how important the Right of First Refusal was to him in executing the lease. This is a clear effort to shoehorn Plaintiffs’ case here into the tests set forth in Smith v. Berman (2019) 33 Cal. App. 5th 195, 197-199. But it is again barred under D’Amico and Shin by Attalah’s prior sworn testimony that there were no such communications. And without this “evidence,” Smith actually supports Defendants’ motion because in what the Court there described as an “issue of first impression,” Smith extends the principles set forth on Spaulding v Yovino Young (1947) 30 Cal. 2d 138 that the trial court below relied on, in a case with a residential lease and an option to purchase, to agreements such as those involved here containing a Right of First Refusal in a lease on commercial property.
The Motion for Summary Judgment is GRANTED.
Defendants to provide notice.
DATED: December 3, 2019 ________________________________
Hon. Robert S. Draper
Judge of the Superior Court