Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2007-00055601 CU-NP-NC, Michael B. Orfield, Judge.
HALLER, Acting P. J.
Ben Hazewinkel (Ben) retained attorney Richard Macgurn to amend his trust to remove his wife as a beneficiary and transfer his interest in real property into the trust. After Ben died, his adult son, Van Hazewinkel (Van), the successor trustee of Ben's trust, brought a legal malpractice action against Macgurn, alleging Macgurn did not properly amend the trust or effectively transfer the property. Macgurn successfully moved for summary judgment on the ground the claims were time barred under Code of Civil Procedure section 340.6 (section 340.6). Van appeals. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 1975, Ben and Betty Hazewinkel established the Hazewinkel Family Trust (Family Trust). Upon the death of either spouse, the trust was to be divided into two trusts known as the Survivor's Trust and the Decedent's Trust. The Survivor's Trust provided for the distribution of the trust res to the couple's sons at the time of the surviving spouse's death. Thereafter, Ben and Betty executed two amendments to the Family Trust. Betty died in 1982.
Three years later, Ben married Wanda Hazewinkel (Wanda). About nine years later, Ben executed a third amendment to the Survivor's Trust. The amendment provided that the Survivor's Trust contained only Ben's separate property, but provided certain benefits for Wanda if Ben predeceased her. The amended Article I named Wanda as the successor trustee. The amended Article II provided that the Survivor's Trust became irrevocable at Ben's death. The amended Articles IV, V, and VI provided that if Wanda survived Ben, a "Marital Trust" was created, under which Wanda had a life estate in the trust res and was entitled to income and to invade the principal for her benefit. The amended Article VII provided that upon the surviving spouse's death, Ben's grandchildren and Wanda's grandchildren had a remainder interest in the Survivor Trust. Ben later executed a fourth amendment to the Survivor's Trust.
In about September 2005, Ben and Wanda separated. Several months later, Ben met with attorney Macgurn and requested that Macgurn draft an amendment to the Survivor's Trust "for the purpose of disinheriting Wanda... from the Survivor's Trust." To accomplish this, Macgurn prepared a document entitled "Fifth Amendment to Declaration of Trust" ("Fifth Amendment").
In January 2006, Ben signed the Fifth Amendment. The Fifth Amendment stated it was modifying "only" two Articles of the Survivor's Trust: Article I and Article VII. (Underscoring in original.) The new Article I revoked the provision identifying Wanda as the successor trustee and named Ben's adult son, Van, as the new successor trustee. The new Article VII revoked Article VII "in its entirety" and added new provisions stating that upon Ben's death, the trust estate would be divided between Van and two of Van's children. The amended Article VII also included a provision stating: "Trustor has intentionally, and with full knowledge, failed and omitted to provide for [Wanda]...." However, the Fifth Amendment did not make any changes to Articles IV, V and VI, which had created the Marital Trust and provided Wanda with various benefits, including a life estate in the Survivor's Trust property upon Ben's death.
Ben also asked Macgurn to prepare a deed to transfer his community interest in real property ("the Vista property") into the Survivor's Trust. After preparing this deed and obtaining Ben's signature, Macgurn recorded the deed on February 7, 2006. However, Macgurn did not obtain Wanda's written consent to this transfer.
Ben died three months later, on April 27.
One week later, on May 4, Cheryl Barrett, Van's attorney, wrote to Macgurn, stating that Van "retained our firm to assist him with the administration and settlement of his father's estate." In the letter, Barrett questioned various aspects of the Fifth Amendment, including the fact that the amended Article VII explicitly stated that Wanda was intentionally omitted as a beneficiary, but the amendment failed to revoke Articles IV, V, and VI that had provided Wanda with a life estate in the Survivor's Trust.
In this regard, Barrett wrote: "[T]his is the critical part where we need your help. My client states that his father told him that Wanda had been taken out of the trust. At the time of the Fifth Amendment, we believe... Ben had already filed for separation and Wanda had responded with dissolution papers. My client thinks it odd, therefore, that Ben would still want to retain the [trust] provisions for Wanda's benefit and the wording here in this amendment leads one to think that Ben thought he had eliminated those provisions. What we need to know from you is what Ben's intentions were in stating that he had not provided for Wanda when in fact, he continues to do so via the Bypass and Marital Trusts...." (Italics omitted.)
One week later, on May 11, Macgurn responded by "confirm[ing] that [Ben] retained me to prepare an amendment to the Survivor's Trust to disinherit [Wanda] from the Survivor's Trust.... [¶] The Fifth Amendment... should state 'I revoke Articles IV through VII... ', not Article VII, only. My client's intent [was] clear, the responsibility for the incorrect language is mine."
Several weeks later, on May 31, Barrett sent Macgurn a proposed declaration in which Macgurn would admit his error in drafting the Fifth Amendment. Barrett stated that Van planned to file a petition in probate court to counter Wanda's ownership claims over trust property and respond to Wanda's refusal to return Ben's ashes to his children. The proposed declaration, drafted by Barrett, included a statement that the purpose of the declaration was to support Van's probate petition "to help secure what [Ben] wanted for his intended beneficiaries." Macgurn signed the declaration the next day.
One week later, on June 8, Wanda's attorney sent a letter to Van's attorney asserting that Wanda was entitled to principal and income from the Survivor's Trust. The letter detailed the terms of Articles IV, V, and VI, and stated that these provisions provide Wanda with an unqualified right to distributions from trust principal as necessary for her health, support and maintenance. The letter claimed that the Fifth Amendment did not specifically revoke these provisions, and therefore they remained in effect. Wanda's attorney also questioned the propriety of Van's continued service as Trustee and suggested that Van should consider resigning based on information that Van "was directly involved in procuring the Fifth Amendment... and that Ben was heavily medicated and using oxygen regularly at the time the Fifth Amendment was executed." The letter concluded by requesting that Van immediately distribute income and principal from the Survivor's Trust: "[W]ithin the next week, please advise our office regarding your client's plan for distributing income and principal to [Wanda] pursuant to the terms of the above discussed provisions of the Survivor's Trust. Time is of the essence in distributing the income and principal to [Wanda] as it is a great financial hardship to her to continue to wait for distributions." (Italics added.)
One month later, on July 11, 2006, Van, as successor trustee of the Survivor's Trust, filed a petition under Probate Code section 850, subdivision (a)(3) and Probate Code section 17200, subdivision (b)(4). In the petition, Van requested the court order that Wanda "take nothing" from the Survivor's Trust. Van claimed that Ben had intended to disinherit Wanda, and his failure to revoke Articles IV, V, and VI were the result of an attorney's error. Van also requested the court to confirm that one-half of the Vista property was owned by the Survivor's Trust, and to order that Wanda return withdrawn funds from several bank accounts because those funds were property of the Survivor's Trust. Van also discussed the family members' disputes over Ben's ashes and sought a court order that Wanda return the ashes to Ben's children.
In support of the allegations pertaining to Ben's intentions, Van submitted Macgurn's declaration, in which Macgurn admitted a "scrivener's error" with respect to his failure to amend the trust provisions that had provided Wanda with a life estate in the Survivor's Trust property. Macgurn stated it was Ben's intention "that upon his demise his entire estate would be distributed to [Van and Van's children]... and that [Wanda] would have no interest in his estate."
On August 8, Wanda filed objections to the Probate Petition. In the objections, Wanda stated that the Fifth Amendment did not modify the provisions entitling her to income and principal of the Survivor's Trust during her lifetime, and urged the court to reject Van's request that the court rewrite the Survivor's Trust to disinherit her. Wanda additionally objected to Van's claim that one-half of the Vista property was owned by the Survivor's Trust, asserting that the transfer was invalid because Wanda did not consent to the transfer. Wanda also objected to Van's confirmation as trustee.
Van presumably filed a response to Wanda's objections, but the record does not disclose the date the response was filed.
More than one year later, on August 24, 2007, Van, as trustee of the Survivor's Trust, brought a malpractice and equitable indemnity action against Macgurn. Van alleged Macgurn failed to "properly prepare the Fifth [Amendment] for purposes of disinheriting [Wanda] from the Survivor's Trust... [and] [a]s a direct and proximate result of [Macgurn's] negligence, Wanda now claims... [¶]... [¶]... she is the lifetime beneficiary of... the Survivor's Trust...." Van also alleged Macgurn breached the standard of care by failing to obtain Wanda's written consent to the transfer of Ben's interest in the Vista property to the Survivor's Trust. With respect to damages, Van alleged that "As a direct and proximate result of [Macgurn's] negligence, [Van] has initiated probate and trust proceedings to address Wanda's claim as a lifetime beneficiary of the Survivor's Trust, Wanda's claim that the Vista property was not transferred to the Survivor's Trust, and Wanda's claim to a Probate Homestead in the Vista property. As a direct and proximate result [Van] has and will sustain damages including but not limited to costs and attorney fees in defending Wanda's claims against the Survivor's Trust and the Vista property, and loss of the Survivor's Trust assets according to proof."
In response, Macgurn moved for summary judgment, contending the undisputed facts showed Van's August 24, 2007 complaint was barred by the applicable one-year statute of limitations. In support, Macgurn relied on the evidence showing Van knew of the alleged malpractice shortly after Ben's death in April 2006, and that in May through July 2006, Van incurred attorney fees and costs in attempting to rectify Macgurn's errors. Macgurn also argued Van suffered actual injury at Ben's death because at that time the trust was irrevocable.
In opposing the summary judgment motion, Van acknowledged he knew of the alleged malpractice shortly after Ben's death, but argued he did not suffer "actual" damages until after Wanda filed her August 2006 objections in Probate Court. In support, Van presented the declaration of his counsel, David Shaver, who summarized the history of the Family Trust, discussed the general purposes of a petition for instructions under Probate Code section 17200, and asserted that Van had filed the probate petition for reasons other than Macgurn's drafting error, particularly the "hostage situation involving [Ben's] ashes."
After a hearing, the court granted Macgurn's summary judgment motion, concluding the undisputed facts established the professional negligence and indemnity claims were time-barred under section 340.6. The court also sustained Macgurn's evidentiary objections to attorney Shaver's declaration.
The court sustained Macgurn's objections to Shaver's declaration in the tentative order, and then confirmed the tentative as its final ruling. Thus, we reject Van's argument that Macgurn's evidentiary objections are waived because Macgurn did not obtain a ruling on the objections. On appeal, Van does not assert any error with respect to the court's evidentiary rulings.
DISCUSSION
The parties agree Van's claims are governed by section 340.6, which provides a legal malpractice action must be "commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first." Under this statute, the limitations period accrues when the plaintiff knows, or should know, of the underlying facts, but the period is tolled during the time the "plaintiff has not sustained actual injury...." (§ 340.6, italics added.)
Van acknowledges he discovered the alleged malpractice no later than May 2006, when his attorney sent a letter to Macgurn questioning whether Macgurn's preparation of the trust amendment reflected Ben's intent, and raising the issue of whether Wanda's consent was obtained before Ben transferred his community property interest in the Vista property. Van argues, however, that the limitations period was tolled because he did not sustain "actual injury" from the alleged malpractice until Wanda formally challenged the trust in probate court and Van was required or compelledto respond to this challenge.
As explained below, this argument is legally and factually unsupported. The undisputed facts show Van incurred costs and attorney fees in an attempt to remedy the alleged malpractice more than one year before filing the legal malpractice action. Thus, he suffered "actual injury" within the meaning of section 340.6.
I. Applicable Legal Principles
In Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739 (Jordache), the California Supreme Court defined the meaning of an "actual injury" under section 340.6 for purposes of the tolling rule. In so doing, the court rejected the prior view that an "actual injury" in a transactional matter occurs only after the underlying litigation had concluded adversely to the malpractice plaintiff. (Id. at pp. 762-763.) The court held instead the "test for actual injury under section 340.6... is whether the plaintiff has sustained any damages compensable in an action...." (Id. at p. 751, italics added.) The court stated that actual injury "refers only to the legally cognizable damage necessary to assert the cause of action." (Id. at p. 752.) Under this definition, a plaintiff sustains "actual injury" if he or she incurs attorney fees to rectify the problem caused by the attorney's alleged negligence. (Id. at pp. 750-751.) The court contrasted this type of injury with "speculative or contingent" injuries, which "are those that do not yet exist, as when an attorney's error creates only a potential for harm in the future." (Id. at p. 754.)
The Jordache court emphasized the determination of when an "actual injury" occurs does not "depend on facile, 'bright line' rules," and instead requires "a factual analysis of the claimed error and its consequences." (Jordache, supra, 18 Cal.4th at pp. 764, 752.) "The inquiry necessarily is more qualitative than quantitative because the fact of damage, rather than the amount, is the critical factor." (Id. at p. 752.) The analysis "concerns whether 'events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages.' [Citation.] However, once the plaintiff suffers actual harm, neither difficulty in proving damages nor uncertainty as to their amount tolls the limitations period." (Ibid.) Although the "actual injury" issue is primarily a factual inquiry, "[w]hen the material facts are undisputed, the trial court can resolve the matter as a question of law in conformity with summary judgment principles." (Id. at p. 751.)
II. "Actual Injury" Occurred More than One Year Before Complaint Filed
In this case, the material facts are not in dispute. Within days after Ben died, Van retained an attorney to assist in the administration of Ben's estate. Although it was Van's understanding that Ben had intended to remove Wanda as a beneficiary from the Survivor's Trust, Van discovered the Fifth Amendment did not make any changes to Articles IV, V, or VI, which had provided Wanda with a life estate in the trust property upon Ben's death.
One week after Ben's death, on May 4, Van's attorney wrote to Macgurn and questioned why these trust provisions had not been revoked by the Fifth Amendment. One week later, Macgurn replied that Ben had intended to revoke these trust provisions, and Macgurn was responsible for the error. On May 31, Van's counsel requested that Macgurn execute a declaration admitting the error. The declaration, prepared by Van's attorney, states that the purpose of the declaration is to "obtain[ ] approval of the Petition For Instructions For Distribution of the Trust Estate, in order to help secure what [Ben] wanted for his intended beneficiaries." (Italics added.) Shortly after, Wanda made a demand on Van for a distribution of the Survivor Trust property, based on the fact that the Fifth Amendment did not revoke Articles IV, V, and VI.
On July 11, Van filed the probate petition, specifically seeking an order that: (1) Wanda "take nothing" from the Survivor's Trust and therefore that Van may distribute all of the Survivor's Trust assets among Van and Ben's two grandchildren; and (2) Ben had properly transferred into the Survivor's Trust his community interest in the Vista property. Van supported the petition with Macgurn's declaration admitting his errors. The evidence also supported that Van paid a filing fee associated with the petition, and Van does not dispute that he was required to pay attorney fees for his attorney's services in investigating the claim, preparing the declaration, and preparing and filing the probate petition. Consistent with this evidence, in his malpractice complaint, Van alleged he initiated probate and trust proceedings to respond to Wanda's claims for Survivor Trust benefits based on the alleged improper preparation of the Trust documents and that he incurred legal fees with respect to his petition. The evidence showed the only probate proceeding initiated by Van was his petition filed in July 2006. Van then waited more than one year, until August 24, 2007, to file his malpractice complaint.
On this record, the only reasonable conclusion is that Van incurred attorney fees and filing costs as a proximate result of Macgurn's negligence, and that these fees and costs were first incurred in May and June 2006 when Van's attorney investigated the error, communicated with Macgurn, and then prepared Macgurn's supporting declaration and the probate petition seeking to rectify this error. Van suffered additional fees and costs when he filed the formal probate petition on July 11, 2006.
It is well settled that a legal malpractice plaintiff suffers an "actual injury" when he or she pays fees to a "second attorney to untangle the [first attorney's] error." (Jordache, supra, 18 Cal.4th at p. 751.) This is precisely what occurred in this case more than one year before Van filed the action. In May through July 2006, Van paid fees to attorney Barrett to investigate and then to "untangle" the problem caused by Macgurn's drafting error. The problem was actual, and not "contingent" or "speculative," because by June 2006, Wanda was asserting her right to the Survivor's Trust property based on the wording of the Fifth Amendment.
III. Van's Legal and Factual Arguments Are Unsupported
Van concedes "[t]here can be no doubt that attorney fees incurred as a direct result of another's tort are recoverable damages." But he argues attorney fees incurred as a result of legal malpractice do not constitute "actual injury" unless the plaintiff was legally"required" or "compelled" to take actions to remedy the error. He thus contends he suffered no actual injury because he was not legally required to act until after Wanda filed a petition in probate court.
In support of this argument, Van relies on decisions that have used the phrase "required to act" in their description of the "tort of another doctrine." (See Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620 (Prentice); Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.) Those decisions state: "A person who through the tort of another has beenrequired to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessarily loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Ibid.) Focusing on the words "required to act," Van argues "actual injury" under Jordache occurs only if the attorney fees were incurred in an action that the plaintiff was "compelled" to take, i.e., that it was a mandatory legal action, such as filing an answer to a complaint, or in this case filing a response to Wanda's objections filed in probate court.
There is no support for Van's narrow interpretation of the Jordache "actual injury" test. Viewing the word "required" in context of the tort-of-another rule, the term means the "natural and proximate consequence" of defendant's negligence was to cause the plaintiff to take some form of action that resulted in the plaintiff incurring fees or costs, i.e., the action taken by the plaintiff was sufficiently related to the malpractice to constitute an actual injury caused by the malpractice. (Prentice, supra, 59 Cal.2d at p. 621; see Jordache, supra, 18 Cal.4th at p. 752 ["[t]he determination of actual injury requires only a factual analysis of the claimed error and its consequences"]; Brandt v. Superior Court (1985) 37 Cal.3d 813, 820 [plaintiff must prove that because of the breach "it was reasonably necessary for the plaintiff to employ the services of an attorney to collect the benefits due under the policy"].) Consistent with this view, the courts have recognized that attorney fees are recoverable in a malpractice action not only for the fees incurred in the defense of the underlying claim, but also for the fees incurred when the plaintiff brought an action against a third party to address the error caused by the malpractice. (See Prentice, supra, 59 Cal.2d at p. 620.) In this case, the evidence was undisputed that it was reasonable and necessary for Van to retain an attorney to investigate and seek relief based on Macgurn's "scrivener's error" in drafting Ben's trust documents.
Van also relies on several decisions stating that an "actual injury" occurred when the malpractice plaintiff was "compelled" to incur attorney fees. (See Laird v. Blacker (1992) 2 Cal.4th 606, 615; Sirott v. Latts (1992) 6 Cal.App.4th 923, 928.) However, viewing this language in the context of the particular facts of these cases, the courts did not alter the established "tort of another" rule permitting recovery of attorney fees as damages if there is a sufficient nexus between the malpractice and the attorney fees incurred by the plaintiff to remedy the error. (See Jordache, supra, 18 Cal.4th at p. 751; Brandt, supra, 37 Cal.3d at pp. 817-818.) Neither Laird nor Sirott imposed an additional element that the actions taken by the plaintiff had been legally compelled.
Van additionally relies on decisions in which the courts held the plaintiff did not suffer an actual injury until or unless the opposing party filed legal claims based on the alleged malpractice. (See Fritz v. Ehrmann (2006) 136 Cal.App.4th 1374 (Fritz); Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052 (Orrick); Baltins v. James (1995) 36 Cal.App.4th 1193 (Baltins); Horne v. Peckham (1979) 97 Cal.App.3d 404 (Horne).) These decisions are distinguishable because in each of those cases the opposing party did not make a claim for benefits or challenge the plaintiff's actions based on the alleged malpractice.
In Fritz, for example, a client filed a legal malpractice action in 2003, alleging the attorney failed to properly prepare a promissory note in 1995 to reflect that a third party borrower could not prepay the principal on funds borrowed from the client. (Fritz, supra, 136 Cal.App.4th at pp. 1377-1379.) The attorney moved for summary judgment based on the statute of limitations, asserting the client suffered actual injury when the note was signed in 1995 or in November 2000 when the other party to the note prepaid principal without a penalty. (Id. at p. 1379.) The trial court granted the motion, but the appellate court reversed. The Fritz court reasoned that the injury was "still speculative and contingent in 1995" because it was unknown whether the borrowers would have attempted to prepay the principal or refused to repay the deferred interest. (Id. at p. 1383.) The court also found there were facts showing there was no actual injury in November 2000 when the borrower made the prepayment because evidence showed the client permitted the prepayment based on an independent tax reason, and not based on the attorney's alleged drafting error. (Id. at pp. 1384-1385; see also Baltins, supra, 36 Cal.App.4th at p. 1208 [alleged negligent advice to transfer property "created only a potential for adverse consequences unless [opposing party] challenged the transfer"]; Horne, supra, 97 Cal.App.3d at p. 417 ["No actual and true damage flowed from defendant's negligence until the trust was challenged and plaintiffs were forced to pay legal fees to defend the negligently drafted trust documents"].)
The California Supreme Court initially disapproved Horne to the extent it held that the event triggering the malpractice action in transactional malpractice cases is the plaintiff's incurring attorney fees to address the problem. (ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245, 256.) However, the court later overruled ITT's holding on this issue. (Jordache, supra, 18 Cal.4th at pp. 762-763.) The Jordache court explained that ITT failed to acknowledge that plaintiff sustains an "actual injury" when he or she incurred attorney fees "to defend negligently prepared documents and reduce the alleged error's effects." (Jordache, supra, at p. 763.) The Jordache court also disapproved Baltins to the extent it held "that 'actual injury' is determined by any bright line rule...." (Jordache, supra, at p. 761, fn. 9.)
In Orrick, the court found the malpractice plaintiff suffered no tort damages where no claims had been made against him based on the alleged malpractice. (Orrick, supra, 107 Cal.App.4th at pp. 1057-1061.) In that case, the plaintiff sued his former attorneys (Orrick) alleging they failed to properly advise him regarding a settlement with his former wife and omitted critical terms from the settlement agreement. (Id. at pp. 1054-1056.) Orrick moved for summary judgment, arguing the plaintiff could not prove he suffered recoverable damages. (Id. at p. 1055.) In opposing the motion, the plaintiff claimed he suffered injury in the form of legal fees spent in an attempt to overturn the settlement, and argued this action was necessary because "he was exposed to future claims." (Id. at pp. 1056, 1058.) The Orrick court held these legal fees were not recoverable as tort damages because there was no evidence his former wife was claiming benefits based on the omitted terms or that any other claims were asserted based on those omissions. (Id. at pp. 1057-1061.)
Orrick concerned the existence of recoverable malpractice damages, rather than the statute of limitations tolling rule, but the "actual injury" analysis is similar. (Orrick, supra, 107 Cal.App.4th at pp. 1057-1061.)
We agree with the Fritz and Orrick courts that an injury may be speculative and contingent and thus not "actual" if another party has not yet claimed benefits from the alleged malpractice. However, this principle is inapplicable here. In this case, Wanda made claims for benefits under the Survivor's Trust in June 2006 based on Macgurn's improper drafting of the trust. The fact that Wanda first made these claims in a letter, rather than a formal court petition, does not affect the statute of limitations tolling analysis. The critical point is that, unlike Fritz, Orrick, Horne, and Baltins, there was a claim asserted against the malpractice plaintiff arising from the alleged malpractice, and there was a clear nexus between the attorney's alleged malpractice and the costs and fees incurred by the plaintiff. Van was required to pay legal fees to institute an action to defend against Wanda's claim to lifetime benefits from the Survivor's Trust. The fact that Van affirmatively sought relief, rather than waited to defend Wanda's affirmative court filing, does not mean he did not suffer an actual injury from the malpractice.
Further, even if there was a requirement that the actions taken as a result of the attorney negligence be "required" or "compelled," the facts here meet that test. The record shows Van knew Wanda was demanding that Van, as trustee, invade the principal of the trust to pay for her living expenses and that "[t]ime is of the essence" with respect to this request. Wanda's claim was based on the fact that the Fifth Amendment did not make any modifications to Articles IV, V, and VI, and therefore she retained an unqualified right to the trust property. Macgurn admitted, however, that Ben had wanted him to modify these provisions and he made a mistake in not modifying these provisions. At that point, Van was required to take action to seek relief from the court to determine the proper course of action with respect to the trust property.
Van alternatively argues there was a triable issue of fact as to whether his attorney's services for filing the July 2006 probate petition were necessary because a petition for instructions under Probate Code section 17200 is generally not the proper procedure to correct a drafting error in a trust instrument, and instead the correct procedure is a petition to reform a trust under Civil Code section 3399. In support, Van discusses at length the purposes of a Probate Code section 17200 petition, and argues that the general purpose of the petition is merely an elective procedure to seek guidance from the court rather than to rewrite the terms of a trust to correct an attorney error.
Probate Code section 17200 provides in relevant part: "[A] trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust. [¶] (b) Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes... [¶]... [¶] (4) Ascertaining beneficiaries and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument."
This argument is unavailing. Van also filed the probate petition under Probate Code section 850, subdivision (a)(3), which provides a specific procedure for a trustee to institute an action for the purpose of defending against claims by a third party to trust property. Moreover, Van's petition was more than an objective pleading to seek instructions from the court. Van affirmatively sought an order from the court providing that Wanda shall "take nothing" from the Survivor's Trust, and an order declaring that Ben's one-half interest in the Vista property was an asset of the trust.
Probate Code section 850, subdivision (a)(3) states: "The following persons may file a petition requesting that the court make an order under this part: [¶]... [¶] The trustee... [¶]... [w]here the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another...."
Van additionally contends there were other reasons for filing the probate petition, apart from Macgurn's errors, such as Wanda's claim that Ben signed the Fifth Amendment as a result of Van's undue influence. However, even if some of the attorneys' fees and costs are attributable to other arguments made by Wanda, the record establishes that Macgurn's alleged errors were a primary subject of the attorney investigation and the probate petition, and the errors accounted for some (if not most) of the attorney fees and costs. This is confirmed by the allegation in Van's complaint alleging Van suffered damages for preparing and filing the petition to defend against Wanda's claims that were a "direct and proximate result" of Macgurn's negligence. Van is bound by his own allegations for purposes of the summary judgment motion. (See Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.) Further, Van did not present any facts supporting his argument that the legal fees were incurred for reasons other than Macgurn's alleged negligence. Although Wanda raised the undue influence issue as a basis for seeking to remove Van as a trustee, she never specifically asserted the issue as a basis for arguing the Fifth Amendment was invalid.
Van argues that the allegation in his complaint is not binding because it is a legal conclusion. (See Bahan v. Kurland (1979) 98 Cal.App.3d 808, 812.) We disagree. The assertion that Van incurred attorney fees and costs in countering Wanda's claims that she is a beneficiary of the Trust is a statement of fact, not a legal conclusion.
Finally, Van argues that we must analyze separately the alleged malpractice relating to the drafting of the Fifth Amendment and the alleged malpractice relating to the failure to obtain Wanda's consent for the transfer into the Survivor's Trust. However, even if we were to do so, the conclusion would be the same. Van raised both issues in his May 11 letter to Macgurn and in his July 11 probate petition. He was on immediate notice of both aspects of the alleged malpractice and within weeks took steps to rectify the errors. Additionally, Wanda made claims no later than June 2006 in which she sought to benefit from the alleged errors by the attorney.
DISPOSITION
Judgment affirmed. Appellant to bear respondent's costs on appeal.
WE CONCUR: O'ROURKE, J., IRION, J.