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Crumb v. McClain-Hill

Court of Appeals of California, Second Appellate District, Division Four.
Nov 26, 2003
No. B159678 (Cal. Ct. App. Nov. 26, 2003)

Opinion

B159678.

11-26-2003

EALISE CRUMB, Plaintiff and Appellant, v. McCLAIN-HILL, CORNWELL, CHAO & SCHROPP et al., Defendants and Respondents.

Ealise Crumb, in pro per., for Plaintiff and Appellant. Law Offices of Andrea Lynn Rice and Andrea Lynn Rice for Defendants and Respondents Craig Cornwell, Ruth Chao, James Schropp, The Law Offices of James A. Schropp, and Nichelle Frelix. McClain-Hill & Associates, David C. Rodriguez and Jimmy Valentine for Defendants and Respondents Mc-Clain-Hill, Cornwell, Chao & Schropp and Cynthia McClain-Hill.


Ealise Crumb challenges the judgment entered in her legal malpractice action on the respondents motion for summary judgment. She argues the trial court abused its discretion in denying her request for a continuance to conduct further discovery in opposition to the motion, and in denying her discovery motions. We find no abuse of discretion in the trial courts order denying her an opportunity for further discovery. We also conclude the trial court erred in granting summary judgment because the moving parties failed to negate an element as to all of appellants causes of action except the second and seventh. The order denying appellants motion to disqualify the trial court judge is not appealable, and we therefore do not reach the merits of her arguments on that issue.

FACTUAL AND PROCEDURAL SUMMARY

This is a legal malpractice action. The charging pleading is the second amended complaint. In April 1995, appellant hired defendant James A. Schropp, at that time a sole practitioner, to represent her in a racial discrimination action against her former employer, the law firm Haight, Brown & Bonesteel (Haight, Brown). Two months later, she retained Schropp to represent her in a personal injury action against the Metropolitan Transit Authority (MTA). In December 1995, Schropp formed a partnership with defendants Cynthia McClain-Hill, Craig Cornwell, and Ruth Chao, entitled McClain-Hill, Cornwell, Chao & Schropp (McClain-Hill firm). Appellants case was transferred to the McClain-Hill firm.

Apparently, appellant had a pending workers compensation claim against Haight, Brown & Bonesteel when she consulted Schropp. She states that she followed Schropps advice and dismissed that action so she could combine that case with her discrimination lawsuit. She delivered the files on her workers compensation case to Schropp.

Appellant states that the firm instructed her to retrieve the files in a 1989 personal injury action against the Southern California Rapid Transit District from her counsel on that matter. She went with respondents Schropp and Cornwell to her former attorneys office and picked up the files on that matter.

Appellants race discrimination case went to trial in October 1996. It resulted in nonsuit against her. Haight, Brown as prevailing party, filed a cost bill which included a claim for costs and attorneys fees in excess of $150,000. In January 1997, the McClain-Hill firm filed a notice of appeal on behalf of appellant. According to the allegations of the complaint, the McClain-Hill firm obtained several extensions of the deadline to file the opening brief in the appeal, all unbeknownst to appellant. While an extension was in effect, Schropp informed appellant that the McClain-Hill firm would dissolve in August 1997. He told her that her brief would not be impacted, and that it already was complete except for minor changes. Despite appellants repeated requests, she was never given a copy of the opening brief.

In November 1997, appellant telephoned the Court of Appeal and learned that her appeal had been dismissed in October 1997 because the opening brief had not been filed. Schropps motions for relief from default and motion for stay of issuance of remittitur were denied by our court.

In February 1998, appellant discovered that the McClain-Hill firm had not paid medical liens on her personal injury action against MTA. That lawsuit had been settled through mediation for $95,000. Appellant alleged that respondents misappropriated funds from the settlement of the personal injury action, and that lien holders were not fully paid.

Appellant sued the McClain-Hill firm, Cynthia McClain-Hill, Craig McClain-Hill, Ruth Chao, James Schropp, the Law Offices of James A. Schropp, and an associate of the firm, Nichelle Frelix. Acting in propria persona, she alleged causes of action for legal malpractice, breach of contract, negligent and intentional infliction of emotional distress, misappropriation and commingling of funds, fraud, and violation of Business and Professions Code provisions governing the attorney-client relationship.

Respondents demurrers to the fifth cause of action (negligent infliction of emotional distress); sixth cause of action (intentional infliction of emotional distress); and ninth cause of action (violations of the Bus. & Prof. Code) were sustained without leave to amend and are not issues in this appeal.

After litigation commenced, appellant attempted to obtain the files maintained by respondents in the underlying actions. We reserve a detailed examination of those efforts for our discussion of the denial of appellants motion for a continuance of the motion for summary judgment.

Efforts at mediation were unsuccessful. Respondents moved for summary judgment, or in the alternative, summary adjudication of issues. Appellant opposed the motion. Instead of submitting evidence in an effort to raise triable issues of material fact, she argued that the motion should not be granted because discovery was not complete. She argued that respondents had failed to produce the underlying case files, which were relevant to her claims of malpractice. Appellant filed a document entitled "Opposition to Defendants Separate Statement of Undisputed Material Facts." But that document repeated the points and authorities in support of her opposition to the motion and did not address each fact listed in respondents separate statement.

The trial court granted the summary judgment motion. It considered appellants opposition, although it was filed late. Based on appellants failure to respond to the undisputed material facts submitted by respondents in support of their motion, the trial court found the facts were undisputed. It held that respondents had established that no act or omission in the race discrimination case caused appellant damage, based on the following findings: (1) appellant failed to identify any particular act of discrimination by Haight, Brown; (2) appellant admitted that the failure of respondents to inform her of a settlement offer (dismissal of appeal in exchange for a waiver of costs) did not necessarily harm her because she testified that she did not know whether she would have accepted the offer; and (3) the underlying cost judgment had been fully satisfied at no cost to appellant.

With respect to the 1995 personal injury case against the MTA, the trial court found undisputed that: (1) appellant suffered no harm because she had not paid any medical provider; and (2) appellant had no evidence that MTA would have increased the settlement beyond the $95,000 paid.

The trial court concluded that mere breach of a professional duty which causes only nominal damages, speculative harm, or threat of future harm does not create a cause of action for negligence. It ruled that appellant failed to raise triable issues of material fact as to damages based on handling of the MTA settlement because she had no evidence: (1) that the case was worth more than it settled for; and either (2) the defendant would have paid more than it did, or (3) appellant would have obtained a more favorable judgment following trial.

As to appellants third cause of action, alleging respondents failure to settle Dr. Ruffalos lien, there were no triable issues of material fact as to damage. The claim was barred because Dr. Ruffalo had not sued and the statute of limitations had run on his claim. The court also found that no portion of appellants share of the MTA settlement was used to pay the treating health care providers. There were no triable issues of material fact on the seventh cause of action for misappropriation because appellant received her full share of the MTA settlement, negating the element of damages. The court found no triable issues of material fact as to causation or damages on the eighth cause of action for fraud.

The trial court ruled that appellant had refused to take possession of the files in her underlying cases, which had been made available to her. It found no merit in appellants claim that respondents were hiding discovery materials from appellant. The trial court granted summary judgment and in the alternative, summary adjudication of the issues on each cause of action. Appellant filed a timely appeal from the judgment in favor of respondents.

DISCUSSION

I

Appellants only opposition to the motion for summary judgment was her assertion that she could not respond until she received the files in the four underlying cases. In essence, she invoked Code of Civil Procedure section 437c, subdivision (h), which provides that a motion for summary judgment or adjudication shall be denied, or a continuance shall be granted, "[i]f it appears from the affidavits submitted in opposition . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, . . ." "The nonmoving party seeking a continuance `must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.] (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623 .) The decision whether to grant such a continuance is within the discretion of the trial court. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72 .)" (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-634.)

All further statutory references are to this code unless otherwise stated.

Appellants opposition claimed that the court had prejudiced her case by denying her recovery of the files in her underlying cases, which prevented her from obtaining the discovery necessary to prove her case. She filed no declaration in support of the factual assertions contained in the points and authorities. The points and authorities focused on appellants efforts to obtain depositions and the clerks transcript in the race discrimination case which had been highlighted and annotated by respondents in preparing appellants opening brief in the appeal from the nonsuit. Respondents failure to file an opening brief with the Court of Appeal is the basis for the first cause of action for legal malpractice. Appellant took the position that the notations highlighted the merits of her appeal against Haight, Brown.

Only one factual issue was discussed in appellants opposition. It concerned an evaluation by Kimberly Warburton, which appellant asserts was removed from her workers compensation file. She states that respondents told her that this document was the strongest part of her case against Haight, Brown. According to appellant, the motion for summary judgment does not address this document. She provides no further explanation of the document.

We have reviewed the voluminous correspondence and pleadings relating to appellants efforts to obtain the files in the underlying cases. She repeatedly sought the files from counsel for respondents. There is no showing that respondents planned to charge appellant for the files. For example, in late May and early June 2001, Andrea Rice, counsel for respondents Cornwell, Chao, Schropp, and Frelix, informed appellant that copies of 17 specified documents had been made for her. Appellant failed to collect these documents.

In July 2001, Ms. Rice wrote to Marilyn Brath, an attorney then retained by appellant, listing numerous documents Rice had obtained from counsel for Haight, Brown in the underlying matter. Rice offered to make the documents available for copying, by appellant, presumably at her own expense. The documents made available included 22 volumes of depositions; trial exhibits; transcripts of proceedings; medical and employment records; seven folders of trial documents, including jury instructions; trial briefs; motions in limine; and witness lists. In addition, nine separate folders were listed, including pleadings, discovery, and a trial transcript. Although Brath took custody of four boxes of documents to copy, she was discharged by appellant, apparently before the copies were made. In July 2001, Rice informed appellant that 16 original documents from respondents files were available for pick-up. Copying charges were not mentioned. Appellant refused to pick up these documents.

In August and October 2001, Rice wrote to appellant stating that appellant had not yet picked up documents from the underlying files, but that they were still available. Rice also wrote that "we have included copies" of trial exhibits from the underlying racial discrimination action. She told appellant, "Those documents are also available and waiting for you." No demand for payment for these copies was made on appellant in this correspondence.

After the trial court denied a motion to compel production of the underlying files because no request had been made under section 2031, appellant served a formal request for production of the documents. Rice responded in January 2002 with a 36-page list of documents: "The following is a list of documents from the defendants file which have been forwarded to our office. The entirety of this file is available for you to pick up at your convenience. If you prefer, we will mail the documents to an address of your choosing." Rice closed the letter by stating that all the other documents previously identified in correspondence between the parties remained available "on the terms set forth above." No demand for payment for these copies was made in this letter.

In February 2002, appellant moved to compel respondents to produce all the files in her underlying cases. She argued that she should not be required to pay for copies of documents in the underlying cases. Rices declaration in opposition to the motion incorporates the correspondence making the documents available to appellant, but does not address appellants claims that she was being asked to pay for copies of originals she had paid for in the underlying litigation.

In her opening brief, appellant complains that respondents waited until March 4, 2002 (her opposition was due March 29, 2002) to offer her 600 pages from the underlying files at no charge. But she failed to make this argument to the trial court.

We find no abuse of trial court discretion in denying the request for a continuance. While there may be merit in appellants argument that she should not have been made to stand the expense of copying original documents which she paid for in the underlying action, such as deposition or court transcripts, she failed to provide proof that payment was demanded. Appellant relied on argument, rather than evidence, to support her request for a continuance. Her general assertion that the underlying case files are germane to her claims of malpractice is not sufficient to satisfy the requirements of section 437c, subdivision (h). Her only specific argument about the relevance of a document to her opposition was the reference to the Kimberly Warburton evaluation.

This reference is too general to enable a determination of how it supported appellants opposition.

We turn to the merits of the summary judgment motion.

II

As we have discussed, appellant did not file a separate statement of disputed facts in response to the separate statement filed by respondents. Instead, she merely repeated the points and authorities filed in opposition to the motion. Because appellant did not comply with the requirements for a separate statement set out in section 437c, subdivision (b), the trial court ruled that she had not raised a triable issue of material fact, and that the facts were undisputed. But that does not end the inquiry. It was still necessary that respondents establish a right to summary judgment on the merits. "[U]nless the moving party has met its initial burden of proof, the court does not have discretion under subdivision (b) of section 437c to grant summary judgment based on the opposing partys failure to file a proper separate statement." (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.)

Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) We exercise our independent judgment in reviewing an order granting summary judgment, applying the same analysis as the trial court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) A moving defendant has the initial burden of showing that one or more elements of each cause of action cannot be established or that there is a complete defense to the action. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853-854.)

For the first time on appeal, appellant argues the merits of the trial courts order. She raises new arguments that she was damaged by the malpractice of respondents in both her 1995 personal injury action against the MTA and in the racial discrimination case. We may not consider these arguments for the first time on appeal. "A party waives a new theory on appeal when he fails to include the underlying facts in his separate statement of facts in opposing summary judgment. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-32 .) A new theory on appeal is also waived when the new theory involves a controverted factual situation not put in issue below. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879 .)" (City of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1493.) Thus, our review is confined to the evidence proffered by respondents in support of their motion for summary judgment.

As we explain, we conclude the trial court erred in granting full summary judgment. But it also granted summary adjudication of the issues as to each cause of action. Under section 437c, subdivision (f)(1), the court may grant summary adjudication of a cause of action or a claim for punitive damages. It may not grant summary adjudication on a nondispositive issue. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 321.) Significantly, section 437c, subdivision (f)(1), does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action. (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 422.) This principle precludes summary adjudication in favor of respondents on all but two of appellants causes of action.

III

Respondents submitted a separate statement of undisputed facts in support of their motion, as required by section 437c. We have reviewed it in detail, and conclude that many of the undisputed facts are not established by the cited evidence and that others are irrelevant and do not establish a right to summary judgment. A detailed examination is necessary, keeping in mind respondents primary contentions that appellant is unable to establish the elements of causation and damages in her various causes of action.

The separate statement divides the undisputed facts into two categories: those relevant to the claims based on the handling of appellants race discrimination action against Haight, Brown, and those relevant to her claims based on the handling of her 1995 personal injury claim against the MTA. In the first category, undisputed fact No. 1 goes to causation: "Plaintiff had no colorable claim for racial discrimination against Haight, Brown & Bonesteel . . . ." The second and third undisputed facts are irrelevant. Fact No. 2 was that appellant had a felony embezzlement conviction for theft from an employer other than Haight, Brown, having used the funds to pay for a discrimination action against a prior employer. Undisputed fact No. 3 is that a warning pursuant to Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, was issued by a therapist to Haight, Brown based on threats appellant made while on disability leave. Respondents do not argue that this warning provided a legitimate nondiscriminatory reason for any employment action against appellant, thus providing a defense to her race discrimination claim.

In their brief, respondents rely on appellants testimony that she was never fired; her admission that she did not feel discriminated against by anyone at Haight, Brown outside of Cluster 3; evidence that there were other black secretaries in Cluster 3; and appellants admission that another black secretary in Cluster 3, Valerie Baker, denied observing harassment of appellant.

The trial transcript from the underlying discrimination suit cited by respondents for the proposition that appellant admitted that she was never fired does not support that claim. In the cited passage, appellant testified that a Mr. Fuller told her she had to become a "floater" or leave the firm, but the cited record does not reflect that Fuller told appellant that the floater position might only last for two more months, or that some floater positions might be eliminated. The other testimony on the cited page states that appellant did not come into work on a particular Thursday because it was her day off.

In the underlying trial, appellant testified that she believed she would not have suffered the same discrimination if she were not in Cluster 3. She did not feel that any employee at Haight, Brown, other than Mr. Fuller, a Ms. Golan, and employees in Cluster 3 had discriminated against her. Appellant testified that she thought employees in Cluster 3 were in a conspiracy to get her out because she was black, although there were two other black secretaries and a black attorney in that cluster. Appellant admitted that Valerie Baker had testified at the discrimination trial that she did not observe harassment of appellant on the job. (Respondents also cite appellants trial testimony about profanities used by another employee which she felt were directed toward her. None of these epithets was expressly racial in nature, and none appear to be germane to the issues in the case.)

This showing is not sufficient to establish that appellants racial discrimination case was without merit. The evidence submitted by respondents, while uncontroverted, establishes only that appellant thought the discrimination to be centered in one section of Haight, Browns office. The evidence that Ms. Baker did not observe appellant being harassed does not establish there was no harassment. Respondents provide no evidence about the circumstances of the claimed harassment which would allow us to conclude that any harassment would necessarily have been witnessed by Baker. In addition, the evidence cited by respondents fails to negate appellants claim that she was fired.

Appellant also bases her claim of legal malpractice on respondents failure to inform her of a settlement offer from Haight, Brown. Following the nonsuit in the underlying race discrimination action, Haight, Brown was awarded attorneys fees and costs. Appellant alleges that the award amounted to approximately $ 150,000. She alleges respondents failed to inform her that Haight, Brown offered to waive these costs if she would drop her appeal from the nonsuit.

Respondents argue that this claim is too speculative because appellant testified that she is not certain she would have accepted the offer. They also argue that the cost judgment was satisfied without cost to appellant, so she cannot establish damages.

At deposition, appellant was asked whether she would have agreed to dismiss her appeal in exchange for a waiver of costs. She testified: "Well, I really cant answer that question because in order for me to have done something like that, I would have to be advised by counsel and because my lawyers never talked to me about it, I cant answer what I would have or would not have done knowing what I know now. I cant answer that question."

Respondents cite Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1057, which held: "A plaintiff alleging legal malpractice in the prosecution . . . of a legal claim must prove that, but for the negligence of the attorney, a better result could have been obtained in the underlying action. [Citation.] The purpose of this methodology is to avoid damages based on pure speculation and conjecture. (Ibid.)" In Orrick, the plaintiff sued his former counsel, arguing that their incompetent advice led him to enter into an unfavorable settlement agreement, which led to an adverse judgment and fruitless efforts to overturn the settlement. The issue was whether the malpractice plaintiff produced evidence in opposition to a motion for summary judgment to show that his former wife would have settled their marital dissolution action for less, or that he would have obtained a better judgment following trial.

Orrick moved for summary judgment on the ground that plaintiff could not prove actual damages. Plaintiff opposed the motion, submitting expert declarations that the conduct of the defendants was below the standard of care, in part because no mutual release was executed. Plaintiff claimed that he was exposed to future claims by his wives (former and current), although none had yet been filed. (Orrick Herrington & Sutcliffe v. Superior Court, supra, 107 Cal.App.4th at p. 1056.) The trial court denied the motion, and Orrick filed a petition for writ of mandate.

The Court of Appeal held that the plaintiff had failed to produce evidence showing that his ex-wife would have settled for less than she did, or that a trial would have resulted in a more favorable settlement. (Orrick Herrington & Sutcliffe v. Superior Court, supra, 107 Cal.App.4th at pp. 1057-1058.) "`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.]" (Id. at p. 1058.) The Orrick court concluded that the defendants were entitled to summary adjudication because of this deficiency. (Ibid.) The court noted that neither the plaintiffs ex-wife nor his current wife, nor either tax or securities regulators had made any claim against him as a result of the settlement. (Id. at p. 1060.)

Orrick is inapposite. Appellants testimony that she would have required legal counsel to determine whether to accept Haight, Browns settlement offer does not render her claim for damages speculative. It is undisputed that Haight, Brown obtained a judgment against her, that it offered to forgo that award in exchange for dismissal of appellants appeal, and that appellant was not informed of this offer.

Respondents also contend that appellant cannot show damages because it is undisputed that the cost judgment was satisfied at no expense to appellant. Respondent has shown that Haight, Brown filed a satisfaction of judgment. Their separate statement in support of the motion cites a declaration by Rice which states that respondents successfully settled the attorneys fees judgment with Haight, Brown at no expense to appellant. Although this statement is conclusory, appellant lodged no evidentiary objection. We therefore conclude that respondents met their burden of showing appellant was not damaged as a result of their failure to inform her of the settlement offer by Haight, Brown.

The absence of a triable issue of material fact based on the Haight, Brown settlement offer renders summary adjudication on appellants second cause of action appropriate. That cause of action is based on the alleged failure of respondents to file written opposition to, or to appear at the hearing on, Haight, Browns application for attorneys fees. Respondents argue it is undisputed that appellant suffered no damages, in light of a full satisfaction of judgment entered by Haight, Brown on January 10, 2002. Respondents evidence supports that proposition.

We conclude that respondents failed to negate the causation and damages elements of the first cause of action based on the mishandling of the race discrimination action. Therefore, respondents were not entitled to full summary judgment and were not entitled to summary adjudication of the issues on the first cause of action. But respondents were entitled to summary adjudication on the second cause of action, which is based entirely on the mishandling of Haight, Brown attorneys fee application.

IV

In her third cause of action, appellant alleges respondents abandoned her representation in both her racial discrimination and personal injury cases. For the former, she claims they abandoned the appeal. For the latter, she alleges they used her settlement funds for other clients, and as a result, failed to pay the medical lien holders on her case. Appellant alleges that these omissions caused her $150,000 in damages, but does not specify that this figure represents the $150,000 she claims as a result of the costs judgment in favor of Haight, Brown. She also claims that she would have obtained a better result (in settlement or in a new judgment) on the race discrimination case if her appeal had been properly pursued. Finally, she alleges that the abandonment of her personal injury case before the medical lien holders were paid in full exposed to her legal action by the lien holders.

Respondents brief ignores the allegations in the third cause of action based on the race discrimination case, and characterizes it as arising solely from their alleged failure to fully settle the bills of Dr. Claude Ruffalo, who was a medical lien holder in appellants 1995 personal injury action against the MTA. Respondents support their position with appellants testimony that she had not been sued by any medical lien holder and was not aware that any planned to sue.

On appeal, appellant argues the statute of limitations has not run because respondents repeatedly assured Dr. Ruffalo he would be paid. For the first time on appeal, she asserts her damages are not speculative because Dr. Ruffalo sued her in Ruffalo v. Crumb (case No. 02T00497) on February 27, 2002, after the motion for summary judgment was filed, but before appellants opposition was due. As we have discussed, appellant has waived any theory based on underlying facts not included in her separate statement of facts in opposition to summary judgment, or on facts not put in issue below. (City of San Diego v. Rider , supra, 47 Cal.App.4th at p. 1493.) She failed to present her arguments and facts concerning the statute of limitations and the Ruffalo lawsuit to the trial court. She may not raise them for the first time on appeal.

We denied appellants motion to present new evidence on appeal.

Based on this record, there is no triable issue of material fact as to whether appellant was damaged by respondents alleged failure to satisfy Dr. Ruffalos lien from the personal injury settlement proceeds. Nevertheless, respondents are not entitled to summary adjudication because the third cause of action is based on the mishandling of both the MTA personal injury and race discrimination cases. Their failure to address the race discrimination claim renders summary adjudication inappropriate. (See Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1102-1103.)

V

The fourth cause of action alleges that respondents breached their contract by: (1) failure to prepare and file appellants opening brief and failure to preserve her appeal in the race discrimination case; (2) failure to inform appellant that the appeal had been dismissed; (3) failure to promptly seek reinstatement of the appeal; (4) failure to appear at an unspecified hearing or to file unspecified opposition (based on other allegations in the complaint, we take this to be a reference to the attorneys fee award to Haight, Brown); (5) failure to pay medical liens in the personal injury action; (6) abandonment; (7) failure to follow appellants instructions; (8) negligent advice to appellant; and (9) failure to notify appellant that Haight, Brown was willing to waive the cost award if she would abandon her appeal.

As we have seen, the third cause of action is for abandonment, which we treat as a form of professional negligence. (See McDaniel v. Gile (1991) 230 Cal.App.3d 363, 375.) The fourth cause of action is for breach of contract, based on much of the same allegedly deficient performance by respondents. A plaintiff may pursue both tort and contract theories of recovery based on a defendants failure to perform contractual duties. "A contractual obligation may create a legal duty the breach of which will support a tort action. [Citation.] `Contract law exists to enforce the intentions of the parties to an agreement while tort law is designed to vindicate social policy. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683 [254 Cal.Rptr. 211, 765 P.2d 373].) . . . [T]he same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts. [Citation.] [¶] . . . A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort. (Perry v. Robertson (1988) 201 Cal.App.3d 333, 340 .)" (Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 687-688.)

The elements of the cause of action for breach of contract are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) In both a tort and contract claim, a plaintiff must show that damages were caused by the defendants conduct: "The law of California provides that in a contract case, `the measure of damages . . . is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. (Civ. Code, § 3300.) Similarly, `[f]or the breach of an obligation not arising from contract, the measure of damages . . . is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. (Civ. Code, § 3333.)" (Woodside Homes of Cal., Inc. v. Superior Court (2003) 107 Cal.App.4th 723, 735.)

Appellant alleged that she sustained monetary damages in excess of $150,000 as a result of respondents breach of contract. She did not specify whether this figure represents the cost and fee award to Haight, Brown. The fourth cause of action is based in part on respondents failure to file the opening brief in her appeal from the race discrimination case nonsuit, thus leading to the dismissal of her appeal. Paragraph 175 of the complaint, which is incorporated in the fourth cause of action, alleges that appellant paid $4,680 for preparation of the reporters transcripts in that appeal.

Respondents did not address the mishandling of the race discrimination action as a basis for the breach of contract cause of action in their separate statement. For that reason, they failed to establish a right to judgment on the fourth cause of action as a matter of law, and the trial court erred in granting summary adjudication on it.

VI

The seventh cause of action is based entirely on the mishandling of the proceeds of the settlement in the 1995 MTA personal injury action. As we have discussed, appellant failed to raise a triable issues of material fact as to damages caused by that malpractice. It is undisputed that she received her share of the settlement. She testified in deposition that none of the lien holders had brought legal action against her for payment of their liens. Respondents were entitled to summary adjudication on this cause of action.

VII

Respondents characterize appellants eighth cause of action for fraud as "merely one for malpractice." They claim that the fraud allegations are "simply plaintiffs claims for negligence from the first, second, third, fourth and seventh causes of action dressed up as fraud." Therefore, they conclude, the elements of causation and damages are missing because appellant cannot prove she would have obtained a better result as required in a cause of action for malpractice, citing Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.

Our conclusion that respondents are not entitled to summary adjudication on appellants claims for malpractice disposes of this derivative argument. Respondents are not entitled to summary adjudication on the cause of action for fraud.

VIII

Appellant challenges the trial courts denial of her motion to disqualify the judge pursuant to section 170.1, subdivision (a)(6). Section 170.3, subdivision (d) provides that the determination of the question of the disqualification of a judge is not an appealable order, and may be reviewed only by petition for writ of mandate filed within 10 days of notice of the decision. We therefore do not consider the issue in this appeal.

DISPOSITION

The judgment is reversed, except as to the second and seventh causes of action, as to which respondents are entitled to summary adjudication. Appellant is to have her costs on appeal.

We concur, VOGEL (C.S.), P.J, CURRY, J.


Summaries of

Crumb v. McClain-Hill

Court of Appeals of California, Second Appellate District, Division Four.
Nov 26, 2003
No. B159678 (Cal. Ct. App. Nov. 26, 2003)
Case details for

Crumb v. McClain-Hill

Case Details

Full title:EALISE CRUMB, Plaintiff and Appellant, v. McCLAIN-HILL, CORNWELL, CHAO …

Court:Court of Appeals of California, Second Appellate District, Division Four.

Date published: Nov 26, 2003

Citations

No. B159678 (Cal. Ct. App. Nov. 26, 2003)