Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-0079294- CU-PN-CTL, Honorable Luis R. Vargas, Judge.
NARES, Acting P.J.
BACKGROUND AND CONTENTIONS
Defendant Robert A. Smykowski, an attorney, prepared an inter vivos trust agreement for Lucy Hoffman (the decedent). The trust agreement granted plaintiff Diana Dean a life estate in specified real property (the property). Dean sued Smykowski, alleging in her first amended complaint that Smykowski failed to exercise reasonable care in performing legal services for the decedent by (1) failing to draft the trust agreement in a manner consistent with the decedent's testamentary intentions, and (2) failing to advise the decedent that the trust agreement was inconsistent with those intentions. The gravamen of Dean's pleading is that decedent intended to give her the property in fee simple, not a life estate with the remainder going to other beneficiaries.
The court entered a judgment of dismissal after it sustained without leave to amend Smykowski's general demurrer to the amended complaint. The court reasoned that an attorney may be liable to intended beneficiaries only if, due to the attorney's professional negligence, the testamentary intent expressed in the instrument is frustrated and the clearly designated beneficiaries lose their legacies as the result of such negligence.
Dean appeals, contending her first amended complaint alleged facts sufficient to constitute a cause of action for professional negligence against Smykowski. Specifically, she contends Smykowski owed her a duty of care because she was an intended and named beneficiary of decedent's trust. We affirm.
STANDARD OF REVIEW
"A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42 (Rakestraw).) A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)
Whether a complaint states facts sufficient to constitute a cause of action is a question of law. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) We therefore review the sustaining of a demurrer de novo. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting the truth of all properly pleaded material facts, as well as facts inferred from the pleadings, but not the truth of contentions, deductions, or conclusions of fact or law. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) On appeal, the plaintiff bears the burden of demonstrating the trial court erroneously sustained the demurrer as a matter of law. (Rakestraw, supra, 81 Cal.App.4th at p. 43.)
When a general demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISCUSSION
Dean contends the court erred in sustaining the demurrer without leave to amend, asserting that Smykowski owed her a duty of care because she was an intended and named beneficiary of decedent's trust. Dean also claims that Smykowski's "failure to draft the trust in a manner consistent with the [d]ecedent's express wishes deprived [her] of the full distribution to which she was entitled." These contentions are unavailing.
A. Background
In 1996 Smykowski prepared a trust agreement for the decedent, who passed away in 2007. The pertinent provisions of that agreement appear in section 7.1, which states:
"7.1 Distribution of Trust Estate at Trustor's Death
"On the Trustor's death, Diana Dean shall have a life estate in the real property located at 7711 Loma Vista Drive, La Mesa, CA 91941.
"The Trustee shall divide the remaining trust estate into equal shares, one each for Dennis Sch[rae]der, Anita Anderson, Mary Wright, Colleen Peterson, Jerome Moriarty, Timothy Schraeder, and Mary Beauregard, provided however, if any is deceased then to the deceased's spouse, and if none, then back to the trust.
"Each share allocated to a beneficiary of the Trustor shall be distributed to that beneficiary free of trust." (Italics added.)
In her pleading, Dean alleges in paragraph 6 that Smykowski "failed to advise [decedent]" that the provision in section 7.1 of the trust agreement which states that Dean shall have a "life estate" in the property "(a) was inconsistent [with] the intent communicated by [decedent] that [Dean] receive a fee simple interest in the [property]; (b) would not carry out [decedent's] intention that [Dean] receive a fee simple interest in the [property]; and [(c)] would result in unintended remaindermen receiving title to the [property] upon [Dean's] death."
In paragraph 7, Dean alleges that "[decedent] was unaware as to the meaning or legal significance of the term 'life estate.'" She also alleges in that paragraph that Smykowski did not "explain[] the meaning or legal significance of the term 'life estate' to [decedent]."
In paragraph 9, Dean alleges that Smykowski "failed to exercise reasonable care, skill and diligence in performing legal services for [decedent] in the preparation and execution of the Lucy R. Hoffman Family Trust by failing to prepare the dispositive provisions of the trust agreement concerning the [property] in a manner consistent with [decedent's] express directions and/or testamentary intentions." (Boldface omitted.)
The court sustained Smykowski's general demurrer without leave to amend and entered a judgment of dismissal. In a minute order, the court stated that the trust document "contained no legal deficiency which prevented the decedent's wishes expressed therein from being carried out. Thus, [Smykowski] cannot be liable for professional negligence, since the intent expressed in the trust was not frustrated as a result of [Smykowski's] negligence, if any."
B. Applicable Legal Principles
1. Elements of a legal malpractice claim
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 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; see also Chang v. Lederman (2009)172 Cal.App.4th 67, 76 (Chang).) "'"A key element of any action for professional malpractice is the establishment of a duty by the professional to the claimant. Absent duty there can be no breach and no negligence."'" (Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294.)
2. Duty to intended beneficiaries
The California Supreme Court has explained that when a testator's express bequests are frustrated due to attorney negligence, the beneficiaries may sue the testator's lawyer for professional negligence. (Lucas v. Hamm (1961) 56 Cal.2d 583, 591.) "An attorney who negligently fails to fulfill a client's testamentary directions incurs liability in tort for violating a duty of care owed directly to the intended beneficiaries." (Heyer v. Flaig (1969) 70 Cal.2d 223, 226, disapproved on another point in Laird v. Blacker (1992) 2 Cal.4th 606, 620, italics omitted.)
An attorney who drafts a testamentary instrument owes to the intended beneficiaries named therein a duty to "take appropriate action to carry out the testator's wishes─that were expressed and formalized in her signed will." (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 336, some italics added (Osornio).) Therefore, the obligation an attorney owes to intended beneficiaries expressly named in a testamentary document is "a limited duty, enforceable by the intended beneficiary, to exercise ordinary care and skill to properly effectuate a bequest expressly set forth in the testamentary document." (Chang, supra, 172 Cal.App.4th at p. 84, citing Heyer v. Flaig, supra, 70 Cal.2d at p. 229.) In Chang, an expressly named beneficiary attempted to assert a legal malpractice claim not on the grounds of her actual bequest, but based on an allegation the testator intended to revise his or her estate plan to increase that bequest and would have done so but for the attorney's negligence. (Chang, supra, at pp. 74, 86.) The Court of Appeal concluded that "a testator's attorney owes no duty to... an expressly named beneficiary who attempts to assert a legal malpractice claim not on the ground her actual bequest... was improperly perfected but based on an allegation the testator intended to revise his or her estate plan to increase that bequest and would have done so but for the attorney's negligence." (Id. at p. 86.)
C. Analysis
1. Alleged drafting duty
Because Dean was an intended beneficiary expressly named in the trust agreement, the duty Smykowski owed her was limited to exercising ordinary care and skill to effectuate the bequest expressly set forthin that document. (See Chang, supra, 172 Cal.App.4th at p. 84; Osornio, supra, 124 Cal.App.4th at p. 336 .)
In her pleading, Dean does not expressly state any specific duty of care that she claims Smykowski owed her. However, the claimed duty can be inferred from her allegations. As already noted, paragraph 9 of Dean's operative pleading alleges that Smykowski negligently "fail[ed] to prepare the dispositive provisions of the trust... in a manner consistent with [decedent's] express directions and/or testamentary intentions." (Boldface omitted.) We construe Dean's amended complaint to allege that Smykowski owed Dean a duty to prepare the dispositive provisions of the trust agreement concerning the property in a manner consistent with decedent's testamentary intentions.
We conclude that Smykowski did not owe such a duty to Dean as a matter of law. As discussed, ante, the only duty Smykowski owed Dean in her capacity as an intended beneficiary named in the trust agreement was the duty to reasonably effectuate the express bequest to Dean of a life estate in the property. (Chang, supra, 172 Cal.App.4th at p. 84; Osornio, supra, 124 Cal.App.4th at p. 336 .)
2. Alleged duty to advise
As already noted, Dean's pleading also alleges, in paragraph 6, that Smykowski negligently failed to advise the decedent that the provision in section 7.1 of the trust agreement providing that Dean "shall have a life estate in the [property]" was inconsistent with decedent's testamentary intent. In paragraph 7, Dean alleges that the decedent was unaware of the legal significance of the term "life estate," and Smykowski failed to explain its significance to the decedent.
However, the applicable legal standard is not whether the testator understood the legal consequences of her bequests, but whether the will or trust drafted by the attorney carried into effect the intent of the testator as "expressed and formalized" in the testamentary instrument. (Osornio, supra, 124 Cal.App.4th at p. 336; Chang, supra, 172 Cal.App.4th at pp. 80, 84.) The duty of care is narrowly tailored because such lawsuits, if allowed, "would inevitably be speculative because the claim necessarily will not arise until the testator or settlor, the only person who can say what he or she intended or explain why a preciously announced intention was modified, has died." (Chang, supra, 172 Cal.App.4th at p. 86; Ventura County Human Society v. Holloway (1974) 40 Cal.App.3d 897, 905.)
We conclude that a testator's attorney owes no duty to a person in the position of Dean, who is an expressly named beneficiary attempting to assert a legal malpractice claim not on the ground her formalized bequest as set forth in the testamentary instrument─a life estate in real property─was improperly effectuated, but based on an allegation the testator intended to give her the estate in fee simple. Accordingly, we conclude Smykowski did not owe Dean the claimed duty to advise the decedent.
In light of our conclusions, we need not balance the various "Biakanja/Lucas factors," "among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to her, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury, and the policy of preventing future harm." (Lucas v. Hamm, supra, 56 Cal.2d at p. 588; Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)
For all of the foregoing reasons, we conclude Dean failed to state facts sufficient to constitute a legal malpractice cause of action against Smykowski. Because there was no reasonable possibility the defect in Dean's amended complaint could be cured by amendment, we also conclude the court did not abuse its discretion in sustaining Smykowski's general demurrer without leave to amend. Accordingly, we affirm the judgment of dismissal.
DISPOSITION
Judgment is affirmed. Costs on appeal to Smykowski.
WE CONCUR: McDONALD, J., AARON, J.