Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC086611, Cary H. Nishimoto, Judge.
Law Offices of Howard A. Kapp and Howard A. Kapp for Plaintiffs and Appellants Nihad Alshafie and Nihad Alshafie, as Guardian ad Litem for Heba Alshafie, a Minor.
Nemecek & Cole, Jonathan B. Cole, Jon D. Robinson and Mark Schaeffer for Defendants and Respondents M. Lawrence Lallande, Sr., and Perona, Langer, Beck, Lallande & Serbin.
PERLUSS, P. J.
Following two unsuccessful medical malpractice actions, Nihad Alshafie, on his own behalf and as guardian ad litem for his daughter, Heba Alshafie, sued his former attorneys, including Lawrence Lallande, Sr., and Lallande’s firm, Perona, Langer, Beck and Lallande, for legal malpractice. The trial court granted Lallande’s motion for summary judgment, ruling Alshafie could not establish Lallande’s alleged mishandling of the second medical malpractice action caused any injury. We affirm.
Because it is unnecessary to distinguish between actions taken by Lallande individually and the firm, we refer only to Lallande.
FACTUAL AND PROCEDURAL BACKGROUND
A portion of this factual summary is based on our opinion in Alshafie v. Lallande (2009) 171 Cal.App.4th 421, in which we held the trial court had failed to hold a proper hearing to determine whether Nihad Alshafie was obligated to post an undertaking pursuant to Code of Civil Procedure section 1030. Because of the different procedural posture of the two appeals, we have not assumed the truth of any disputed facts relevant to the issues now on appeal.
1. The First Medical Malpractice Action
Nihad’s wife Sana had given birth to a child in 1988 by Caesarian section. Pregnant again in 1997, Sana elected to have a vaginal delivery after being informed of the risks of doing so, including the risk of a uterine rupture, following an earlier Caesarian delivery.
We refer to Nihad Alshafie, his wife, Sana Alshafie, and his daughter, Heba Alshafie, by their first names for convenience and clarity. (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.) Although the plaintiffs in this action are both Nihad in his individual capacity and Heba as represented by Nihad as her guardian ad litem, we generally refer only to Nihad when discussing the prosecution of the action.
Sana, who had received prenatal care at Daniel Freeman Maternity Center, an entity affiliated with UCLA and the Regents of the University of California (Regents), went to Daniel Freeman Hospital on June 10, 1997 for a scheduled induction of labor. On June 11, 1997, more than 24 hours after she had first been given medication to induce labor, Sana had not yet given birth. At 1:30 p.m. it was noted, among other things, the baby’s heart rate was slow and Sana was experiencing vaginal bleeding. The medication was discontinued, and Sana was prepared for an emergency Caesarian section. After the surgery began at 1:55 p.m., the doctors discovered Sana had a uterine rupture and Heba was floating in the peritoneum. Heba was born with severe brain damage.
On June 11, 1998 Richard Garrigues filed a medical malpractice action on behalf of the Alshafies against Daniel Freeman Hospital and the delivering physician, Dr. Rodney Wright. In July 1999 Garrigues responded to written discovery on behalf of Nihad and Sana and defended Sana’s deposition; he defended Nihad’s deposition in September 1999.
According to a September 2006 declaration from Garrigues filed in connection with a motion to require Nihad to post an undertaking pursuant to Code of Civil Procedure section 1030 (see fn. 2, above), in June or July 1999 Garrigues retained Dr. Pamela Boyer, board certified in obstetrics and gynecology, to review the medical records in the matter. Shortly after Garrigues provided Dr. Boyer with the complete hospital file for Sana and Heba, including the fetal monitor strips, she concluded the care and treatment provided by the hospital employees to Sana and Heba did not fall below the standard of care or cause Heba’s brain damage. Consequently, Garrigues made a “tactical decision” not to oppose the hospital’s August 1999 motion for summary judgment, which was supported by two expert declarations; but he appeared at the September 24, 1999 hearing on the motion to ensure judgment was entered only in favor of the hospital so the action could proceed against Dr. Wright. In October 1999 Garrigues twice attempted to obtain entry of default against Dr. Wright, erroneously believing Dr. Wright had failed to answer the complaint.
Statutory references are to the Code of Civil Procedure.
In January 2000 the Alshafies discharged Garrigues and retained Lallande. On May 25, 2000 Lallande dismissed the first medical malpractice action without prejudice.
2. The Second Medical Malpractice Action
In June 2001 Lallande introduced the Alshafies to Gerald Agnew, Jr., who associated as counsel to assist with a second medical malpractice action. The new malpractice lawsuit was filed on August 14, 2001 against Dr. Wright and the prenatal care physicians. Subsequently, Agnew consulted with Dr. Michael Friedman, a board certified obstetrician and gynecologist, who advised Agnew he believed the treatment provided by the hospital, its nurses and Dr. Wright did not fall below the standard of care or cause Heba’s injuries. Agnew also consulted with Dr. Jeffrey Greenspoon, a board certified obstetrician and gynecologist, as well as a maternal fetal medicine specialist, who Agnew anticipated would be the Alshafies’ expert witness. Dr. Greenspoon also concluded there was no negligence by anyone involved in the care given to Sana and Heba.
Agnew and Lallande advised Sana and Nihad they believed there was no merit to the lawsuit. In a letter dated February 28, 2003 Lallande reiterated his concerns about the case and sought authorization to settle the matter for any sum obtainable or to negotiate a dismissal for a waiver of costs. After Sana and Nihad signed the authorization on March 5, 2003, Agnew was able to obtain an offer from the Regents, which had stipulated all of the doctors involved in Sana’s prenatal care and the delivery of Heba were its agents or employees, to settle the case for $150,000. Nihad, however, refused to accept the settlement.
In September 2004 the Cochran Law Firm replaced Lallande and Agnew as counsel. Work done by that firm suggested Heba had been the victim of nursing malpractice (contrary to the conclusion of the prior experts)-the purported failure of the nursing staff to appreciate the significance of readings from the fetal monitor strips and the consequent delay in notifying the treating obstetrician of any problems. However, when the Regents moved for summary judgment on November 12, 2004, Nihad filed a nonopposition conceding that the judgment in favor of the hospital in the first medical malpractice action was broad enough to preclude the claims in the second malpractice action. Judgment was entered in favor of the Regents on February 1, 2005.
The non opposition stated, “The expert evaluation of this case concluded that the negligence that resulted in [Heba’s] injuries was done by the nursing staff at Daniel Freeman Hospital, Maternity Clinic. As stated in the Moving Papers, on August 27, 1999 the Defendant Daniel Freeman filed a Motion for Summary Judgment. For some unknown reason, no Opposition was filed by plaintiff. On September 24, 1999, the Order grant[ed] the Motion with no opposition or appearance by plaintiff. That Order held that the ‘healthcare providers at Daniel Freeman, ’ which would include the nursing staff, had met their burden of proof for the granting of the motion. [¶] Plaintiff concedes that no further action exists against The Regents of the University of California or the University of California Los Angeles Medical Center.”
3. The Legal Malpractice Action
On August 12, 2005 Nihad filed a legal malpractice action against Lallande; Agnew and his firm, Agnew & Brusavich; and Garrigues and his partner, Michael Sisson, and their firm Garrigues & Sisson (the Garrigues defendants). On June 28, 2006 Nihad filed a third amended complaint asserting claims for negligence, breach of fiduciary duty and intentional infliction of emotional distress.
The third amended complaint alleged the Garrigues defendants had failed to learn the basis of the medical malpractice underlying Heba’s injuries, failed to conduct any discovery and failed to oppose the hospital’s motion for summary judgment. With respect to Lallande and the Agnew defendants, the third amended complaint alleged, inter alia, they knew, but failed to advise the Alshafies, of the basis for a legal malpractice action against the Garrigues defendants; they knew, but failed to advise the Alshafies, any malpractice insurance the Garrigues defendants had would lapse if a claim was not timely presented, thus diminishing the collectability of a judgment; and they failed to take steps to set aside the grant of summary judgment in the first action, instead prosecuting the second case knowing it was futile.
4. The Trial Court’s Ruling Granting Summary Judgment
On September 2, 2009 Lallande moved for summary judgment or, in the alternative, summary adjudication. Notwithstanding the breadth of the allegations in the third amended complaint, Lallande described the professional negligence claim as asserting two distinct breaches of duty-failure to seek to set aside the judgment entered in favor of the hospital in the first medical malpractice action and failure to file suit against the Garrigues defendants resulting in delay until the instant action was filed.
With respect to the first alleged breach, Lallande contended, based on the undisputed facts, the trial court would not have set aside the judgment even if a timely motion had been filed, thus negating causation: Garrigues’s deliberate, “tactical decision” not to oppose the hospital’s motion for summary judgment after his own expert had concluded the hospital did not commit malpractice made it impossible to set aside the judgment under section 473, subdivision (b), because the adverse judgment was not the result of “surprise, inadvertence [or] excusable neglect.” Lallande also argued the “positive misconduct” doctrine-a narrow exception permitting the court to set aside a judgment when the attorney’s inexcusable neglect effectively obliterates the existence of the attorney-client relationship-was not applicable because Garrigues did not fail to take any action after the complaint was filed, the hallmark of positive misconduct.
Regarding the second alleged breach, Lallande argued an attorney does not breach any duty by failure to earlier file an otherwise timely legal malpractice claim because concerns may exist as to insurance coverage and, in any event, there was no evidence Nihad had suffered cognizable harm by the delay in filing the action.
In his opposition to the motion Nihad argued the trial court was prohibited from adjudicating separate “theories” of liability that individually do not comprise a cause of action. (See § 437c, subd. (f)(1).) Nihad also argued whether the judgment in the malpractice action could be set aside under section 473, subdivision (b), was a question of fact for a jury that could not be resolved on summary judgment; in addition, Garrigues had decided not to oppose the hospital’s motion without consulting Nihad, which was the ultimate form of client abandonment constituting positive misconduct as a matter of law. Nihad further asserted there was no basis for Dr. Boyer’s opinion no negligence had been committed, which Garrigues purportedly relied on, because the evidence demonstrated Garrigues did not obtain the fetal monitor strips necessary for any opinion regarding the standard of care until after the hospital’s motion was filed. Nihad objected to admission of Garrigues’s 2006 declaration, in part because it purportedly contradicted his June 2006 deposition testimony, as well as Dr. Boyer’s August 2009 deposition testimony. Nihad also accused Dr. Boyer of committing perjury, but did not object to admission of her 2006 declaration.
Because we conclude Garrigues’s actions did not constitute positive misconduct even if he failed to obtain Nihad’s consent not to oppose the hospital’s motion for summary judgment, any factual dispute about the issue of consent is not material.
After a hearing on November 16, 2009 the trial court overruled virtually all of Nihad’s evidentiary objections, sustained virtually all of Lallande’s and granted summary judgment in favor of Lallande. The court found Nihad could not establish he would have obtained a better result in the second medical malpractice action but for Lallande’s alleged negligence in failing to seek to set aside the first malpractice judgment: “The court must decide what the legal ruling should have been on a motion to set aside. [Citation.] Here, there were no factual grounds to set aside the judgment under CCP 473(b). Garrigues’ decision not to oppose the motion was a pure tactical decision because of plaintiffs’ own expert’s opinion of no liability. There was no mistake, inadvertence, surprise or neglect. Further, Garrigues’ decision does not rise to the level of conduct to utilize the ‘positive misconduct’ exception. Under the positive misconduct exception, counsel’s disregard for his duties must be so extreme to amount to an utter failure to represent the client such that it obliterates the relationship and constitutes complete abandonment. [Citations.] Here, that type of extreme misconduct is not present. In fact, Garrigues continued to prosecute the action against the remaining Defendants and was active in furthering the action.”
With respect to the claim Lallande should have filed a legal malpractice action against Garrigues when he was fully insured, the court stated, “Defendants cannot be charged with foreseeing a potential Defendants’ future insurance coverage in determining the timing of the filing of a lawsuit. The timing of filing a lawsuit, so long as it is within the period of limitations, is again simply a tactical decision that cannot constitute a breach of the standard of care.... Here, Plaintiffs are unable to show beyond mere speculation that they would have obtained a better result had Garrigues been sued earlier.”
The court found the claim for breach of fiduciary duty, based on the same facts as the claim for professional negligence, failed for the same reasons as the legal malpractice cause of action. As for intentional infliction of emotional distress, the court ruled Nihad failed to provide any evidence Lallande had acted in an extreme and outrageous manner, had intended to cause harm or had acted recklessly with the knowledge that his actions would cause harm; in addition the court found emotional distress damages generally cannot be recovered where, as here, only economic damages are at stake.
Lallande’s request for judicial notice of subsequent trial court rulings is denied as unnecessary.
CONTENTIONS
Nihad contends the trial court erred in holding as a matter of law the first medical malpractice judgment in favor of the hospital would not have been set aside under section 473, subdivision (b). Nihad also contends the court erred in finding the claims for breach of fiduciary duty and intentional infliction of emotional distress were without merit.
Nihad does not directly challenge on appeal, and thus we do not address, the trial court’s rulings that, absent a limitations bar, the timing of a lawsuit cannot constitute a breach of the standard of care and Nihad was unable to show he would have obtained a better result had the Garrigues defendants been sued earlier. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [“[a]lthough our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in plaintiffs’ brief”].)
DISCUSSION
1. Standards for Summary Judgment, Legal Malpractice and Motions To Set Aside Adverse Judgments
a. Summary judgment
A motion for summary judgment is properly granted only when “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.” (§ 437c, subd. (c).) We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
b. Legal malpractice
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 the 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.)
There is no dispute Lallande owed a duty to Nihad. While Lallande does not concede the issue of breach, his motion was based on Nihad’s inability to prove causation.
To establish causation in a legal malpractice action, the plaintiff is required to prove, but for the defendant’s negligent acts or omissions, he or she would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241; accord, Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179; see United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 334 [although attorney conceded he was negligent in failing to respond to complaint, his liability depended on whether plaintiff had valid defense to claims asserted against it].) This requirement, intended to safeguard against “speculative and conjectural claims, ” essentially requires a “trial-within-a-trial” of the underlying case. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 834 [trial-within-a-trial “is a standard of proof designed to limit damages to those actually caused by a professional’s malfeasance”]; accord, Viner, at p. 1241.) “The trial-within-a-trial method does not ‘recreate what a particular judge or fact finder would have done. Rather, the jury’s task is to determine what a reasonable judge or fact finder would have done....’” (Mattco Forge, Inc., at p. 840.)
“Causation is generally a question of fact for the jury, unless reasonable minds could not dispute the absence of causation.” (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666; see Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864 [causation “is ordinarily a question of fact which cannot be resolved on summary judgment” unless “under undisputed facts, there is no room for a reasonable difference of opinion”]; United Community Church v. Garcin, supra, 231 Cal.App.3d at p. 334 [“question about what would have happened had [the attorney] acted otherwise is one of fact unless reasonable minds could not differ as to the legal effect of the evidence presented”].) However, causation is a question of law for the court in a legal malpractice action if the issue hinges on a question of law that would have been determined by the trial court in the underlying action. (See Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 970 [“whether a court or jury decides the underlying case-within-a-case does not turn on the identity or expertise of the trier of fact, but whether the issues are predominately questions of fact or law”]; Lombardo, at p. 668, fn. 2 [“if it should become necessary to determine whether the probate court’s ruling was correct or incorrect, the responsibility to resolve this legal question would fall to the trial court and not to the jury”].)
c. Relieving a party from a judgment entered as a result of mistake, inadvertence, surprise or neglect; the positive misconduct doctrine
Whether a reasonable judge would have granted Nihad relief from the judgment entered in favor of the hospital in the first medical malpractice action is the central question in this appeal. A party seeking discretionary relief under section 473, subdivision (b), based on attorney neglect “must demonstrate that such mistake, inadvertence or general neglect was excusable ‘because the negligence of the attorney... is imputed to his client and may not be offered by the latter as a basis for relief.’” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 (Carroll).) Neglect is excusable only if “‘a reasonably prudent person under the same or similar circumstances’ might have made the same error.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) “In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258; accord, Henderson v. Pacific Gas and Electric Co. (2010) 187 Cal.App.4th 215, 229; see Carroll, at p. 898 [“client’s redress for inexcusable neglect by counsel is, of course, an action for malpractice”].)
Mandatory relief is not available when judgment is entered as a result of a successful summary judgment motion. (Henderson v. Pacific Gas and Electric Co. (2010) 187 Cal.App.4th 215, 228-229 [“mandatory relief provision of section 473(b) does not include relief for mistakes an attorney makes in opposing, or not opposing, a summary judgment motion”].)
A narrow exception to the general rule that an attorney’s neglect is imputed to the client exists for extreme neglect amounting to abandonment: “‘[E]xcepted from the rule are those instances where the attorney’s neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. [Citations omitted.] The exception is premised upon the concept the attorney’s conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client.’” (Carroll, supra, 32 Cal.3d at p. 898.)
The phrase “positive misconduct” in this doctrine is something of a misnomer: “The term ‘misconduct’ usually refers to acting improperly, but” in positive misconduct cases the courts “are concerned with not acting at all. Like the sentry who falls asleep at his post, the attorney who does nothing is guilty of misconduct. Although the word ‘positive’ refers to a high degree of misconduct, the indolence” in these cases “is more aptly described as negative.” (Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 73, 74 [attorneys’ neglect should not be imputed to client under discretionary dismissal statutes when they “expressly and impliedly promised they would prosecute her lawsuit while they took no action whatsoever”].) Indeed, the common thread in positive misconduct cases is whether the attorney has repeatedly failed to take action, not whether action taken fell far below the standard of care. In Daley v. County of Butte (1964) 227 Cal.App.2d 380 (Daley)-the case attributed with originating the positive misconduct doctrine, sometimes referred to as the Daley exception-the appellate court refused to impute counsel’s “inexcusable and extreme” neglect to his client for purposes of a discretionary dismissal. (Id. at p. 391.) Counsel had inexplicably failed to serve process, appear at successive pretrial conferences, or communicate with the court, his client and other counsel. (Id. at pp. 391-392.) After the client sought to substitute another attorney, counsel held “the substitution of attorneys for more than five months while his client’s cause ripened for disaster....” (Id. at p. 392.) The Daley court stated, “[Counsel’s] consistent and long-continued inaction was so visibly and inevitably disastrous, that his client was effectively and unknowingly deprived of representation.” (Id. at p. 391; see, e.g., Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 354 [positive misconduct where, after agreeing to interpose defense in cross-action on guaranty, attorney failed to file appearance; failed to take action despite actual notice of default entry; failed to appear at trial notwithstanding assurances to client; and failed to take action to relieve client from $50,000 judgment]; Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301 [attorney failed to notify client of new trial date or appear at trial; after client learned of adverse judgment and contacted attorney, attorney promised to seek to have judgment set aside, but never contacted client again]; see also Carroll, supra, 32 Cal.3d at p. 900 [“[w]hat Daley, Orange Empire and Buckert have in common is a total failure on the part of counsel to represent the client: each attorney had de facto substituted himself out of the case”].)
The Supreme Court in Carroll cautioned against an expansive interpretation of the positive misconduct doctrine: “[T]he Daley exception should be narrowly applied, lest negligent attorneys find that the simplest way to gain the twin goals of rescuing clients from defaults and themselves from malpractice liability, is to rise to ever greater heights of incompetence and professional irresponsibility while, nonetheless, maintaining a beatific attorney-client relationship.” (Carroll, supra, 32 Cal.3d at p. 900; see Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 208 [acknowledging narrow application of positive misconduct exception].)
2. The Trial Court Properly Granted Summary Judgment in Favor of Lallande
a. Nihad cannot establish Lallande’s alleged professional negligence caused cognizable injury
The material facts relating to the causation element of Nihad’s legal malpractice claim-would a motion for relief under section 473, subdivision (b), have been granted-are undisputed. As the trial court ruled, Garrigues’s decision not to oppose the hospital’s summary judgment motion did not constitute excusable neglect justifying relief. (Carroll, supra, 32 Cal.3d at p. 895 [conduct falling below the professional standard of care is generally considered inexcusable]; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682 [“Legislature did not intend to eliminate attorney malpractice claims by providing an opportunity to correct all the professional mistakes an attorney might make in the course of litigating a case”].) Similarly, the court properly concluded, based on undisputed, admissible evidence, Garrigues’s conduct in handling Nihad’s and Heba’s claim against the hospital did not constitute positive misconduct warranting relief from their counsel’s deliberate, tactical choice. Although the case was essentially inactive in its first year, beginning in approximately June 1999, Garrigues subpoenaed and obtained medical records for Sana and Heba; retained an expert to review the medical records; responded to discovery propounded by the hospital; prepared Sana and Nihad for depositions and defended those depositions; prepared an expert designation; reviewed the hospital’s motion for summary judgment and made a conscious decision not to oppose it; appeared at the hearing on the hospital’s motion to ensure judgment was entered only with respect to the hospital and not Dr. Wright; and twice attempted to take the default of Dr. Wright.
Relying on a sentence extracted from Daley, supra, 227 Cal.App.2d 380, Nihad insists Garrigues’s decision not to oppose the hospital’s summary judgment motion falls within the positive misconduct doctrine because it entirely destroyed the medical malpractice claim and thus constituted an “abandonment” far worse than inexcusable inaction. To be sure, the Daley court said, “An attorney’s authority to bind his client does not permit him to impair or destroy the client’s cause of action.” (Id. at p. 391.) But in repeating this established rule concerning the proper role of attorney and client, the Daley court was addressing the lawyer’s inaction that effectively deprived the client of representation and, as a consequence, destroyed the claim. Nothing in this language justifies an expansion of the positive misconduct doctrine to include deliberate actions taken by counsel, even if ill-advised or even disastrous to the client’s litigation position. In such circumstances relief under section 473, subdivision (b), is not available for the injured client; instead, his or her remedy is a malpractice action. (Carroll, supra, 32 Cal.3d at p. 898 [“[t]he client’s redress for inexcusable neglect by counsel is, of course, an action for malpractice”].)
In Alshafie’s brief and again at oral argument, his counsel identified Roscoe Moss Co. v. Roggero (1966) 246 Cal.App.2d 781 as primary authority supporting his contention an attorney’s decision without consulting his or her client not to oppose summary judgment is abandonment warranting relief under the positive misconduct doctrine. Similar to Daley, supra, 227 Cal.App.3d at page 391, Roscoe Moss Co. only states the uncontroversial proposition concerning the proper role of attorney and client: “While an attorney had broad authority to enter stipulations relative to the conduct of a case, this right does not extend to waiving a client’s cause of action, or defense without authority on the part of the client.” (Roscoe Moss Co., at p. 786.) Neither the case nor the statement quoted by counsel has any bearing on the positive misconduct doctrine. Roscoe Moss Co. was an appeal from the trial court’s order granting an oral motion for summary judgment made during a chambers conference where it was “obvious that the procedural requirements of [section 437c] were ignored; no proper notice of such a hearing was given and no affidavits, or declarations, establishing facts, were filed.” (Roscoe Moss Co., at p. 784.) It did not involve a motion for relief under section 473, subdivision (b).
Factual disputes as to whether Garrigues was qualified to litigate a medical malpractice case; failed to obtain medical records necessary to evaluate the case and obtain an expert opinion before the hospital’s motion for summary judgment was filed; failed to conduct discovery; or failed to obtain Nihad’s consent not to oppose the hospital’s motion for summary judgment may exist but are not material to the court’s decision granting Lallande’s motion. These alleged misdeeds and omissions may establish Garrigues was negligent, but do not constitute the complete and continued failure to act required for relief under the narrow positive misconduct exception. The trial court properly concluded, as a matter of law, discretionary relief under section 473, subdivision (b), would not have been available if Lallande had moved to set aside the judgment in the first medical malpractice action. Accordingly, it also properly ruled Nihad could not establish Lallande’s alleged professional negligence caused any cognizable injury.
b. The breach of fiduciary duty claim fails because the professional negligence claim cannot be maintained
The third amended complaint alleged Lallande had breached his fiduciary duty to Nihad by recklessly, intentionally and negligently handling his medical malpractice case and by cooperating with Agnew and Garrigues to keep Nihad ignorant of his legal malpractice claims against the other attorneys. On appeal, however, Nihad essentially argues only “the breach of fiduciary claim survives because the negligence claim survives.” In light of our holding Nihad cannot establish causation as required for his malpractice claim, his breach of fiduciary duty claim also fails. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [“[i]ssues not raised in an appellant’s brief are deemed waived or abandoned”].)
c. The intentional infliction of emotional distress claim fails because there is no evidence of outrageous conduct or intent to cause harm
A cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by the plaintiff; and (3) the plaintiff’s emotional distress is actually and proximately the result of defendant’s outrageous conduct. (Conley v. Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126, 1133; see Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7.) Extreme and outrageous conduct is conduct that is “‘so extreme as to exceed all bounds of that usually tolerated in a civilized community’” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) and must be “‘of a nature which is especially calculated to cause, and does cause, mental distress.’” (Cole, at p. 155, fn. 7.) “‘“[I]t is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”’” (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44; accord, Chang v. Lederman (2009) 172 Cal.App.4th 67, 86-87.)
The third amended complaint alleges as the sole basis for Nihad’s cause of action for intentional infliction of emotional distress that “Lallande... handled plaintiffs’ claim in such a reckless, unethical, intentional and negligent manner and in [a] manner contrary to [his] fiduciary duties to plaintiffs so as to cause plaintiffs severe emotional distress.” Even if Nihad were able to establish Lallande had been negligent, his conduct was simply not the kind of extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress. (See, e.g., McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1516-1517 [allegations that veterinarian’s negligence caused dog’s death and veterinarian then lied to dog’s owner to cover up malpractice insufficient to state cause of action for intentional infliction of emotional distress]; Chang v. Lederman, supra, 172 Cal.App.4th at p. 86 [attorney for decedent’s trust did not commit outrageous conduct sufficient to support cause of action for intentional infliction of emotional distress when he sent letter to decedent’s widow directing her to vacate marital residence without notifying her of any right of continued possession she may have].)
Although neither directly alleged as a basis for the intentional infliction of emotional distress cause of action nor clearly argued on appeal, the third amended complaint generally alleges Lallande and the Agnew defendants deliberately or recklessly “continued to cover up the obvious legal malpractice of the Garrigues defendants.” To foreclose any effort by Nihad to recast his emotional distress claim as grounded on this vaguely asserted conspiracy among his lawyers, Lallande submitted a declaration in support of the summary judgment motion stating, “I never at any time made any intentional misrepresentation to Nihad Alshafie concerning any aspect of the case. I attempted to keep Mr. Alshafie updated and to provide him with my ongoing assessment of aspects of the case that I considered important. I never intentionally concealed any information from Mr. Alshafie, and I attempted to disclose all information that I believed was important, including the progress of the case and my assessment of how the case had been handled by prior counsel. There was never any form of ‘cover up’.... I never intended to cause any injury or distress to Plaintiffs, emotional or otherwise. I endeavored to advocate for Plaintiffs as zealously and effectively as I could under all the circumstances.”
Whether or not the allegations of a “cover up” described conduct that was so extreme and outrageous as to support Nihad’s emotional distress cause of action, Lallande’s declaration was sufficient to shift the burden to Nihad to demonstrate a triable issue of fact on intent to cause mental distress. (Cf. Villa v. McFerren (1995) 35 Cal.App.4th 733, 748 [to shift burden on conspiracy issue, defendant could have filed a declaration stating he never agreed to take action central to conspiracy claim].) Nihad, however, did not proffer any evidence in opposition to Lallande’s declaration. Instead, relying in large part on section 437c, subdivision (e), Nihad simply argued Lallande’s conclusory, “self-serving mental assertion” is inadmissible and, in any event, insufficient to support summary judgment.
Section 437c, subdivision (e), states, “If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.”
Lallande’s description of his own activities and mental state was properly considered by the trial court. Section 437c, subdivision (e), does not preclude such evidence but does afford the trial court discretion to deny a motion for summary judgment when the only proof of an individual’s state of mind is the individual’s own declaration. The trial court expressly declined to exercise that discretion, ruling, “To the extent the court may have had discretion under Code of Civil Procedure section 473c(e) to disregard portions of defendants’ evidence, or to deny any portion of the defendants’ motion, the court exercises its discretion not to do so.” (See Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 417 [trial court retains discretion to grant summary judgment based on declaration in which declarant testifies as to his or her state of mind; “the declarations in support of the motion for summary judgment contain competent, percipient testimony showing that each defendant lacked the necessary intent that plaintiff alleged as an element of his fraudulent transfer cause of action”].) In light of Nihad’s failure to offer any evidence to rebut Lallande’s statement he did not intend to cause emotional distress, the trial court properly concluded Nihad could not establish an essential element of the cause of action for intentional infliction of emotional distress on this alternative theory as well.
DISPOSITION
The judgment is affirmed. M. Lawrence Lallande, Sr., and Perona, Langer, Beck, Lallande & Serbin are to recover their costs on appeal.
We concur: WOODS, J., JACKSON, J.
Nihad, however, indirectly challenges the court’s ruling on the second alleged breach by renewing his argument the court was barred by section 437c, subdivision (f)(1), from adjudicating the separate “theories” of malpractice framed by Lallande. This argument is wholly without merit. Section 437c, subdivision (f)(1), provides that a motion for summary adjudication may only be granted “if it completely disposes of a cause of action....” Lallande properly treated the alleged breaches, in effect, as separate causes of action and demonstrated that one or more elements of each could not be established. (Cf. Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854 [“the clearly articulated legislative intent of section 473c, subdivision (f), is effectuated by a.pplying the section in a manner which would provide for the determination on the merits of summary adjudication motions involving separate and distinct wrongful acts which are combined in the same cause of action”]; Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188 [“two separate and distinct grounds for liability constitute separate cause of action for purposes of... section 437c, subdivision (f)(1)”].)