Opinion
A117805
4-29-2008
VIRGINIA FULLER, Plaintiff and Appellant, v. SHARON CEASAR et al., Defendants and Respondents.
NOT TO BE PUBLISHED
INTRODUCTION
Virginia Fuller appeals in propria persona from a judgment entered by the Alameda County Superior Court following the courts grant of summary judgment in favor of attorneys Sharon Caesar and Sandra Smith and against plaintiffs Fuller and her company C & V Caring Friends, Inc. in plaintiffs legal malpractice action. Fuller had asserted below that Caesar had committed malpractice by forcing her into an inadequate settlement agreement with the defendants in the underlying action and by dismissing plaintiffs action without authorization and contrary to Fullers express orders. On appeal, Fuller contends the trial court erred in granting summary judgment for Caesar.
C&V Caring Friends, Inc. has not appealed.
Fuller argues: (1) that Ceasar failed to establish on summary judgment/adjudication that Fullers underlying case in which the alleged malpractice occurred had no merit; (2) that neither collateral estoppel nor res judicata established that the underlying case had no merit because the issue of merit was not fully litigated in the underlying action; and (3) that Fuller had demonstrated both damages and that she would prevail at trial.
Rejecting these claims, we shall affirm the judgment.
PROCEDURAL BACKGROUND
Smith and Ceasar are attorneys. Ceasar represented Fuller in lawsuits by Fuller and her entity, C&V Caring Friends, Inc., alleging discrimination and other claims against many defendants, including governmental entities. Previously, in 1995, Fuller had filed suit against RCEB and certain of its employees for alleged actions occurring between 1990 and 1995. "The premise of Fullers complaint [was] that RCEB and its employees intentionally thwarted Fullers efforts to establish a facility to care for developmentally disabled children." (Fuller v. Regional Center of the East Bay (Feb. 17, 2000, A084862) [nonpub. opn.].) The trial court granted summary judgment against Fuller as to those defendants, and we affirmed in an unpublished opinion on February 17, 2000. (Ibid.) Ceasar began representing appellant in connection with that appeal. Ceasar contacted Smith regarding Smiths assisting Ceasar with the case.
Defendants in the underlying discrimination action included the following entities and various of their employees: Regional Center of the East Bay (RCEB), Family Resource Network of Alameda County, Developmental Disabilities Area Board 5, and the State Department of Developmental Services.
Fuller was represented by other counsel at this time and at other points in those proceedings appeared in pro per. (Fuller v. Regional Center of the East Bay, supra, at p. 2, fn. 2.)
On February 15, 2002, plaintiffs reasserted the same claims in a third amended complaint, but as to defendant RCEB and other defendants, alleged wrongdoing covering a later time period—1997 through May 2000. At a mediation on March 31, 2004, Fuller signed a settlement agreement settling her discrimination lawsuits for $95,000. It was undisputed that Fuller signed the settlement agreement on the third day of mediation, settling her lawsuits for $95,000.
On June 17, 2005, plaintiffs sued Smith and Ceasar for malpractice based upon Ceasars conduct related to the settlement agreement and alleging that Ceasar had pressured Fuller into settling, knowing that she was emotionally fragile and that Ceasar thereafter had entered or allowed the actual dismissals of the action contrary to Fullers express orders and at a time when Fuller had fired Ceasar. Plaintiffs alleged five causes of action against Ceasar and Smith: professional negligence; breach of contract; breach of fiduciary duty; for an accounting; and for declaratory relief. With the exception of the causes of action for an accounting and for declaratory relief, the causes of action allege as damages Fullers acceptance of the settlement of her lawsuits for $95,000, when she would have otherwise recovered more than one million dollars.
Around that time, plaintiffs also sought to set aside the dismissals of their lawsuit that had been entered upon the settlement agreement. The motion was heard by Judge Steven A. Brick. On January 18, 2006, Judge Brick entered his order denying plaintiffs motion to set aside the dismissals. He determined that Ceasars conduct in connection with filing the dismissals after Fuller had instructed her not to do so "constitutes positive misconduct, and amounts to extrinsic fraud in that Ceasar implicitly represented that she was authorized by her client to do an act that she was not." Nevertheless, the court denied the motion to set aside the dismissals because Fuller had failed to show that she had acted with diligence in seeking to set aside the dismissals once the error was discovered and because she had failed to show she had a meritorious case against RCEB and the other defendants in the underlying action. The court concluded plaintiffs had failed to offer sufficient evidence that the settlement was unenforceable due either to Fullers incapacity or on account of duress. It further concluded with respect to the "underlying merits, there is little or no evidence from which this Court can conclude that Plaintiffs claims would have merit if they were to be reinstated." Appellants appeal of this determination (No. A113604) was dismissed on July 14, 2006.
On November 27, 2006, before the Honorable Winifred Smith, Ceasar moved for summary judgment or, in the alternative, summary adjudication of plaintiffs malpractice action against her. On January 12, 2007, Smith joined Ceasars motion and moved separately for summary judgment or, in the alternative, summary adjudication.
Judge Smith granted both Ceasars and Smiths motions for summary judgment. The court found that plaintiffs claims against Smith were barred by the one-year statute of limitations contained in Code of Civil Procedure section 340.6, and that there was "no triable issue as to whether Smith was ever paid for any work on the underlying case such that she would be required to account for it."
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
With regard to Ceasar, the trial court found there were no triable issues of material fact on the issue of damages on the causes of action for professional negligence, breach of contract and breach of fiduciary duty. The court concluded on the basis of plaintiffs discovery responses in the malpractice action that plaintiffs had no more evidence of damages than was presented to Judge Brick in plaintiffs previous motion to set aside dismissals. According to the court, "Thus, Plaintiffs concede that they have no more evidence than the precise declaration that was found insufficient to show the claims had merit in the underlying action. Plaintiff cannot now re-litigate the question of whether she made a sufficient showing in the motion in the underlying case." Having failed to offer any evidence in opposition to summary judgment that had not already been submitted in connection with the prior motion to set aside the dismissals, the court concluded that plaintiffs had failed to raise a triable issue of fact as to the element of damages.
With respect to the causes of action for an accounting and declaratory relief, the court determined that these claims were part of the issues before an arbitrator in a fee arbitration proceeding requested by Fuller and were "barred by the settlement of the fee arbitration between Fuller and Ceasar reached therein." Consequently, there were no triable issues of material fact as to those causes of action.
On April 10, 2007, judgment was entered against plaintiffs and in favor of Smith and Ceasar in the malpractice action. This timely appeal by Fuller followed.
DISCUSSION
Summary Judgment for Smith
Appellant concedes in her opening brief that she "does not contest the statute of limitations defense upon which Smith prevailed." Appellant does not argue in her opening brief that the court erroneously granted summary judgment or summary adjudication as to Smith based on the statute of limitations. Consequently, appellant has abandoned her appeal as to Smith and we dismiss the appeal as to Smith and award Smith her costs on appeal. (Cal. Rules of Court, rule 8.276.)
Summary Judgment for Ceasar
I.
"A motion for summary judgment `shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (§ 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (§ 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853.)
"We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Marie Y. v. General Star Indemnity Co. (2003) 110 Cal.App.4th 928, 949.)" (Perry v. East Bay Regional Park Dist. (2006) 141 Cal.App.4th 1, 8.) " `As a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court. [Citation.]" (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1989) ¶ 8:168.5a, pp. 8-98.3 to 8-98.4 (rev. # 1, 2001); accord, Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483.)
II.
The bulk of the statement of facts of Fullers opening brief on appeal appears devoted to reiterating her declaration in support of the motion to set aside the dismissals, which declaration was incorporated into her opposition to Ceasars motion for summary judgment.
Fuller challenges the grant of summary judgment on several grounds, including that the underlying action had merit because "it addressed an ongoing social, governmental and legal problem involving the denial of rights to disabled people," and that because Ceasar filed the complaint, the underlying action had merit as a matter of law. Neither is a proper basis for overturning the grant of summary judgment. The first issue is not "material" to the question of merit or to whether plaintiff has shown a triable issue of material fact. Nor does the attorneys filing of the complaint in the underlying action preclude summary judgment of the malpractice claim. Appellant relies on Rappleyea v. Campbell (1994) 8 Cal.4th 975, finding merit to a defense for the purpose of setting aside a default for extrinsic mistake and stating that "[o]rdinarily a verified answer to a complaints allegations suffices to show merit. [Citation.]" (Id. at p. 983.) The case did not involve summary judgment and is not relevant to the issue here. Moreover, if the merits of the underlying claim in a malpractice action could be determined merely by the fact that the attorney alleged to have committed the misconduct had filed the complaint, malpractice actions involving the filing of a complaint could never be subject to summary judgment for lack of merit.
Fuller again attacks Judge Bricks denial of her motion to set aside the dismissals, arguing that he should not have refused to set aside the dismissals on the ground the underlying case lacked merit where the dismissals were unauthorized by Fuller. We do not revisit the denial of the motion to set aside the dismissal as it is final.
Fuller further argues that on summary judgment, the trial court could not apply principles of collateral estoppel or res judicata to Judge Bricks determination that the case was meritless, as the underlying merits of the action were not " `actually litigated " or " `necessarily decided " (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943; see Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.)
Fuller argues that the trial court erroneously granted summary judgment based upon a determination that she was collaterally estopped by Judge Bricks denial of her dismissal motion from arguing that her underlying action had merit. Appellant is mistaken. In granting summary judgment, the court recognized that "[i]f Ceasar were relying solely on the prior order to foreclose litigation of the issue here—whether Plaintiffs would have achieved a better result in the underlying litigation had Ceasar performed within the standard of care for her profession—Ceasar would not have met her burden to show that Plaintiffs cannot establish damages." Nevertheless, the court concluded that plaintiffs had failed to raise a triable issue of fact as to the element of damages where Fuller presented "no more evidence than the precise declaration that was found insufficient to show the claims had merit in the underlying action. Plaintiff cannot now re-litigate the question of whether she made a sufficient showing in the motion in the underlying case."
It is unclear whether the court here was itself finding that the evidence presented by Fuller was insufficient to support summary judgment (and that she could not relitigate the motion to dismiss on summary judgment), or whether the court gave collateral estoppel effect to Judge Bricks determination that the evidence presented on the dismissal motion was insufficient to show the underlying claims had merit, so that the same evidence necessarily was insufficient to establish a triable issue of material fact as to the merits in the summary judgment. We need not determine whether the trial court erroneously applied collateral estoppel here. We review the evidence de novo to determine whether there is a triable issue as to any material fact. (Perry v. East Bay Regional Park Dist., supra, 141 Cal.App.4th at p. 8.) Moreover, we review the ruling, not the trial courts reasons, and we may affirm a summary judgment on any correct legal theory. (California School of Culinary Arts v. Lujan, supra, 112 Cal.App.4th at p. 22; accord, Cohen v. Five Brooks Stable, supra, 159 Cal.App.4th at p. 1483.)
Our de novo review of the evidence presented on the summary judgment motion convinces us that Fuller has failed to show a triable issue of material fact regarding damages from the alleged malpractice and breaches of duty she asserts. We turn to that analysis.
III.
"In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorneys duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)" (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661 (Thompson); accord, Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.) "Unless a party suffers damage, i.e., appreciable and actual harm, as a consequence of his attorneys negligence, he cannot establish a cause of action for malpractice. Breach of duty causing only speculative harm is insufficient to create such a cause of action." (Thompson, at p. 661; Charnay v. Cobert, at p. 179.) To prevail on a claim for legal malpractice, the plaintiff must establish that but for the alleged malpractice by counsel, a settlement or a trial would have resulted in a better outcome. (E.g., Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1057 (Orrick); Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518 (Marshak); Thompson, at p. 663; Carlton v. Quint (2000) 77 Cal.App.4th 690, 699-700; see Viner v. Sweet (2003) 30 Cal.4th 1232, 1244; CACI No. 601 [plaintiff must prove she "would have obtained a better result if [defendant] had acted as a reasonably careful attorney"].) " `Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty. [Citation, italics added.]" (Marshak, at p. 1518.)
In Marshak, supra, 72 Cal.App.4th 1514, like here, the plaintiff sought unsuccessfully to set aside a settlement agreement. (Id. at p. 1516.) He then sued his attorney, alleging the attorney had negligently failed to object to the valuation of certain assets, resulting in a loss of $337,000. (Ibid.) The court affirmed the trial courts grant of summary judgment on the legal malpractice claim because the plaintiff had failed to prove that but for the alleged malpractice, the underlying dissolution action would have concluded in a better result. (Id. at pp. 1518-1519.) According to the Marshak court: "In order to prevail in his legal malpractice action, plaintiff must prove that the dissolution action would have resulted in a better outcome had defendant recommended that he reject the settlement offer. Plaintiff must prove what that better outcome would have been. `It is not enough for [plaintiff] to simply allege it was possible, with the right evidence, to establish a community property interest. "[T]he mere probability that a certain event would have happened, upon which a claim for damages is predicated, will not support the claim or furnish the foundation of an action for such damages." [Citation.] [Citation.] `Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty. [Citation.]" (Id. at p. 1518.) Marshak further held that it was insufficient for the husband to show the assets in fact had been improperly valued: "Even if he were able to prove this, however, he would not prevail. For he must also prove that his ex-wife would have settled for less than she did, or that, following trial, a judge would have entered judgment more favorable than that to which he stipulated. Plaintiff has not even intimated how he would establish one or the other of these results with the certainty required to permit an award of damages." (Id. at p. 1519.)
Similarly, in Thompson, supra, 36 Cal.App.4th 657, the defendants had represented the plaintiff in a medical malpractice action against a hospital and the plaintiff maintained in the legal malpractice lawsuit that a better settlement would have resulted had the defendants more diligently pursued his case and that plaintiff suffered harm when new counsel settled at a later date because plaintiff did not have the use of these funds earlier. The plaintiff argued that he presented three types of damages caused by the delay: (1) physical regression due to his mothers inability to pay for speech therapy; (2) loss of value of the settlement due to changes in the financial market; and (3) loss of key evidence. (Id. at p. 662.) With regard to physical regression, the plaintiff provided a declaration of a speech pathologist that the delay in receiving additional therapy caused his regression. As to loss of value, the plaintiff provided a comparison by an economist of what his settlement would have been worth to him if it had been achieved earlier. As to the lost evidence, the plaintiff cited testimony of a nurse that she had destroyed the documents and notes from the case. (Id. at pp. 662-663.) In affirming the grant of summary judgment, the appellate court concluded that "[n]one of this evidence does more than suggest speculative harm, because it does not demonstrate that but for respondents delay, appellants underlying case would have settled at all, let alone at an earlier date, for the same amount, or with the same structure." (Id. at p. 663.)
In Orrick, supra, 107 Cal.App.4th 1052, the Court of Appeal upheld summary judgment on the basis that the plaintiff could not prove damages arising from alleged attorney malpractice. There, the parties to a dissolution proceeding signed a property settlement agreement during a mediation session. The husband claimed his attorney had advised him the agreement was only tentative and unsuccessfully moved to set it aside. The trial court denied the motion and the husband sued his attorney for malpractice. The husband "produced no evidence showing his ex-wife would have settled for less than she did, or that following a trial, he would have obtained a judgment more favorable than the settlement." (Id. at p. 1058, fn. omitted.)
Here, Fullers showing in opposition to Ceasars and Smiths motions for summary judgment suffers from the same infirmity identified in the above cases. Fuller produced no evidence showing defendants would have settled for more than they did, or that following a trial, she would have obtained a judgment more favorable than the settlement. (See Orrick, supra, 107 Cal.App.4th at p. 1058.)
Instead, she presented evidence showing that Ceasar breached her fiduciary duty and may have committed fraud in settling the claims without authority. " `The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence. [Citations.]" (Orrick, supra, 107 Cal.App.4th at p. 1058.)
Fuller acknowledges that her case is "similar to" Marshak, supra, 72 Cal.App.4th 1514. However, she argues that, unlike Marshak, she produced evidence of her damages showing "lost income and earnings in the amount of $2,989,120" suffered in the underlying action through the report by consulting economist David Bradwell, Ph.D., attached as exhibit A to her declaration in opposition to the motion for summary judgment, and referred to in her separate statement. Bradwell concluded in his report that "[i]n the 5-year period from January 1997 to December 2001, Mr. & Mrs. Fuller lost at least $1,989,120 as a consequence of the misallocation of funds." The report is inherently speculative.
We note that appellant has mistaken the amount of the loss estimated by Bradwell by one million dollars. Bradwells final number is $1,989,120.
Among other things, the report is based upon a number of "assumptions," set forth therein at pages 2 and 3. These assumptions include, but are not limited to, the assumption that the "demand for beds is assumed to exceed the supply of beds throughout the entire time period. In other words, the number of operational homes at any point in time is supply constrained by the availability of State funds." The report also "contend[s] that granting three licenses each to Eden Homes [a competitor operating five facilities] and C & V Caring Friends would have been more equitable and have given the public greater choice in placing youngsters needing this type of care. Then after June 24th, 1997 instead of awarding 2 licenses to Fiesta Homes (Eden by another name), C & V Caring Friends should have had 4 licenses." The report concedes that "[a]s a not-for-profit organization a childrens home does not make a profit as such," but asserts that Mr. and Mrs. Fuller would have received income by providing the "skilled management" required by state regulations of 21 hours per week of services of a qualified mental retardation professional at each home.
Such a report falls far short of the showing of damage that must be made to survive summary judgment as recognized in Marshak, supra, 72 Cal.App.4th 1514: "to be subject to a proper award [damages] must be such as follows the act complained of as a legal certainty. [Citation.]" (Id. at p. 1518.)
Moreover, as in Marshak, there is no evidence whatsoever that defendants in the underlying case would have settled for more than they did, or that, following trial, Fuller would have received a judgment more favorable than that to which she stipulated. (Marshak, supra, 72 Cal.App.4th at p. 1519.) "Plaintiff has not even intimated how [s]he would establish one or the other of these results with the certainty required to permit an award of damages." (Id. at p. 1519.)
Plaintiffs presented no evidence other than that presented in connection with their unsuccessful motion to set aside the dismissal. Moreover, the third amended complaint appears to assert substantially the same claims against the underlying defendants that had been determined against plaintiffs on summary judgment in the previous action. Plaintiffs failed to present any evidence to explain why any of the defendants in the underlying action would be likely to settle for more than they did in these circumstances. Nor does she present evidence that after a trial she would have received a judgment more favorable than that to which she stipulated. "It is not enough for [the plaintiff] to simply claim . . . that it was possible to obtain a better settlement or a better result at trial. The mere probability that a certain event would have happened will not furnish the foundation for malpractice damages. . . ." (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461.)
CONCLUSION
Accordingly, the trial court properly granted summary judgment on the basis that plaintiffs failed to raise a triable issue of fact that they suffered any damages—that were more than speculative—as a result of the alleged malpractice and breach of fiduciary duties.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs in connection with this appeal.
We concur:
Haerle, J.
Lambden, J.