Opinion
NOT TO BE PUBLISHED
APPEALS from an order and judgment of the Superior Court of Los Angeles County, County Super. Ct. No. BC317842 Judith C. Chirlin and Rita J. Miller, Judges.
Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich and D. Aaron Brock for Plaintiff and Appellant.
Garrett & Tully, Ryan C. Squire, Tomas A. Ortiz and Rana Nader for Defendants and Respondents.
CROSKEY, J.
Anahit Abedi appeals a judgment in favor of Robert Heller and Friedman, Heller & Enriquez, LLP (Friedman, Heller) after the court granted a motion for summary judgment or summary adjudication against her complaint. The defendant attorneys represented Abedi as the plaintiff in two sexual harassment and wrongful termination actions in federal court until they successfully moved to withdraw as counsel. She sued the defendants for legal malpractice, and later settled the federal actions. The court granted the defendants’ motion for summary judgment or summary adjudication on the ground that Abedi could not prove that she would have obtained a more favorable settlement or judgment absent the alleged malpractice. Abedi contends she presented evidence sufficient to show that she would have obtained a more favorable settlement but for the defendants’ alleged malpractice. We conclude that she failed to present evidence sufficient to create a triable issue of material fact and therefore affirm the judgment.
Heller is a partner in Friedman, Heller.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Abedi commenced an action against Kobo Products, Inc., and its president, David Schlossman, by filing a complaint in the Los Angeles Superior Court in December 1999. She alleged that she acted as a distributor for Kobo Products under an oral agreement and that Kobo Products breached the agreement by paying her less than the agreed commissions, failing to assign her new territories for distribution, and terminating the distributorship arrangement. She alleged counts for breach of contract, false promise, negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, an accounting, and declaratory relief. The action was removed to the United States District Court for the Central District of California (Abedi v. Kobo Products, Inc. (No. SACV 00-498) (Kobo action)).
Abedi commenced a separate action against Schlossman by filing a complaint in the United States District Court for the Central District of California in November 2000 (Abedi v. Schlossman (No. SACV 00-1196) (Schlossman action)). She alleged that Schlossman had subjected her to sexual harassment during the time that she acted as a distributor for Kobo Products and Presperse, Inc., another company with which Schlossman was associated. She sought compensatory damages, punitive damages, and other relief.
The district court granted summary judgment in favor of the defendants in the Kobo action in April 2001. Abedi appealed the judgment. Leonard Sands represented Abedi in both actions at the time they were filed, but withdrew as counsel while the appeal in the Kobo action was pending. Mark Russakow represented Abedi in the Schlossman action after Sands’ withdrawal, while another attorney represented her in the Kobo appeal.
Abedi later sued Sands for legal malpractice.
Abedi hired Heller and Friedman, Heller to replace Russakow as counsel in the Schlossman action in October 2002. After the Ninth Circuit Court of Appeals affirmed in part and reversed in part the judgment in the Kobo action in January 2003, Abedi hired Heller and Friedman, Heller to represent her in the Kobo action as well.
Friedman, Heller retained a damages expert, Karl Schulze, to assist in the Schlossman action. Abedi provided documents directly to Schulze, as requested. Among the documents that she provided to Schulze was a handwritten note dated March 21, 2001, from Abedi to her former attorney Sands. The note included a calculation of damages and stated:
“Let Kobo’s attorney’s [sic] know that even if this case is thrown out of court, we still have the lawsuit against Mitch [Schlossman] and we will include all Kobo’s losses and my troubles with Presperse and many others in the claims so no matter what I will get my damages.”
The note was attached to Schulze’s damages analysis report and produced to Schlossman’s counsel in late January 2003.
Kobo Products and Schlossman had offered to settle both federal actions for a total of $500,000 before Abedi first hired Heller and Friedman, Heller. They increased their offer to $600,000 in March 2003. Heller urged Abedi to accept the offer, but Abedi rejected it. Heller and Friedman, Heller successfully moved to withdraw as counsel for Abedi in the Kobo and Schlossman actions in June 2003. Abedi continued to prosecute the two actions represented by new counsel.
Schlossman filed three motions in limine in the Schlossman action on August 3, 2004, seeking to exclude documents containing calculations of Abedi’s alleged damages and also seeking to exclude Schulze’s expert opinion on economic damages in its entirety. Schlossman argued that Schulze’s expert opinion was unreliable, in part because it was based on Abedi’s own calculations. On August 23, 2004, the court granted the motions as to the documents, but denied the motion as to Schulze’s testimony. The court urged the parties to settle.
2. Trial Court Proceedings
Abedi filed a complaint against Heller and Friedman, Heller in June 2004, alleging a single count for legal malpractice. She alleges that the defendants disclosed confidential information to opposing counsel, failed to adequately develop evidence in support of her claims, and otherwise failed to satisfy the applicable standard of care. Friedman, Heller filed a cross-complaint against Abedi alleging a count for breach of contract and common counts, seeking to recover $31,482.61 in alleged unpaid legal fees.
Abedi settled with the defendants in the Kobo and Schlossman actions in August 2004 for an undisclosed amount less than $600,000. Heller and Friedman, Heller moved for summary judgment or summary adjudication against Abedi’s complaint in February 2006. They argued that Abedi could not prove that but for the alleged malpractice Abedi would have obtained a more favorable settlement or judgment. The defendants focused on three alleged acts and omissions in the underlying actions: (1) the failure to adequately oppose a motion that resulted in the reopening of discovery and a trial continuance; (2) the disclosure of the handwritten note from Abedi to Sands; and (3) the failure to provide Schulze with admissible evidence on which to base his opinion. They argued that the evidence established that there was no causal nexus between these alleged acts and omissions and any reduction in the settlement value of the Kobo and Schlossman actions. The court agreed and granted the motion in May 2006, awarding both defendants “summary judgment” against the complaint. Abedi filed a notice of appeal from the order.
Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A judgment is proper only if it finally resolves all issues in the action between the parties. (Id., § 577; see Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) A party is entitled to summary adjudication if there is no triable issue of material fact as to one or more causes of action within an action. (Code Civ. Proc., § 437c, subd. (f)(1).) An order summarily adjudicating all of the causes of action in a complaint therefore is an order granting summary adjudication, rather than summary judgment, if causes of action in a cross-complaint between the same parties remain unadjudicated. Although the order stated that the court was granting summary judgment in favor of both defendants, we consider the order an order granting summary judgment against the complaint as to Heller only. Because the cross-complaint by Friedman, Heller was still pending, the order granted summary adjudication against the complaint as to Friedman, Heller.
An order granting summary judgment or summary adjudication is not appealable, but is reviewable on appeal from a later judgment. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7; Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1816.) In light of the later judgment, we will dismiss the appeal from the order.
The court entered a judgment in July 2006, after a nonjury trial on the cross-complaint. Abedi filed a notice of appeal from the judgment.
CONTENTIONS
Abedi contends she presented evidence sufficient to show that she would have obtained a more favorable settlement but for the defendants’ conduct. She contends the defendants’ alleged negligent disclosure to the opposing party of her note to her former counsel and failure to provide her expert witness with admissible evidence on which to base his opinion reduced the settlement value of the Kobo and Schlossman actions. Specifically, she contends the fact that the settlement in August 2004 was for an amount less than the amount offered in March 2003 supports a reasonable inference that the disclosure of her handwritten note and failure to provide her expert witness with admissible evidence caused the decline in settlement value.
DISCUSSION
1. Standard of Review
A party is entitled to summary judgment only if there is no triable issue of material fact and the party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A party is entitled to summary adjudication if there is no triable issue of material fact as to one or more causes of action within an action. (Id., subd. (f)(1).) A defendant moving for summary judgment or summary adjudication must show that one or more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense. (Id., subd. (p)(2).) A defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff cannot reasonably obtain needed evidence. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) If the defendant meets this burden, the burden shifts to the plaintiff to set forth “specific facts” showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).) We review the trial court’s ruling de novo, liberally construe the evidence in favor of the opposing party, and resolve all doubts concerning the evidence in favor of the opposing party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
2. Abedi Failed to Present Evidence Sufficient to Establish a Causal Connection Between the Defendants’ Alleged Malpractice and the Reduction in the Amount Offered for Settlement
A plaintiff alleging legal malpractice in the prosecution of an action must prove that but for the negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement. (Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1057-1058; see Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)
Abedi’s sole argument on appeal is that the settlement amount offered to her before the two alleged instances of malpractice was greater than the amount of her later settlement in the Kobo and Schlossman actions, and that this creates a reasonable inference that the alleged malpractice reduced the settlement value of the two actions. She argues that the defendants’ disclosure to opposing counsel of her note to Sands and the defendants’ failure to provide Schulze with admissible evidence to support his damages opinion both occurred after the defendants in the underlying actions offered her $600,000 in settlement. In fact, however, undisputed evidence shows that both the disclosure of the note and the production of Schulze’s damages report occurred in January 2003, which was before, not after, the defendants in the underlying actions increased their settlement offer from $500,000 to $600,000 in March 2003. Abedi presented no evidence to the contrary in opposition to the defendants’ motion for summary judgment or summary adjudication. Thus, the factual basis for Abedi’s argument on appeal is totally unsupported by the record. Accordingly, we conclude that she has shown no error in the ruling on the motion and no error in the judgment.
DISPOSITION
The judgment is affirmed. The appeal from the order granting summary judgment and summary adjudication is dismissed. The defendants are entitled to recover their costs on appeal.
We Concur: KLEIN, P. J., KITCHING, J.