Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert L. Hess, Judge. Los Angeles County Super. Ct. No. BC351851.
Law Offices of Martin L. Stanley, Martin L. Stanley and Jeffrey Robbin Lamb for Plaintiff and Appellant.
Riley & Reiner, Raymond L. Riley and David L. Wiggins for Defendants and Respondents.
ASHMANN-GERST, J.
Plaintiff and appellant Jodi Johnson (appellant) appeals from a trial court order granting summary judgment to defendants and respondents Riley & Reiner and Raymond L. Riley (respondents). The trial court found no triable issue of fact on appellant’s claim for legal malpractice, and we agree. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Dissolution of Appellant’s Marriage
In November 1998, respondents represented appellant in the dissolution of her marriage to William Johnson (William). Pursuant to the judgment in that action entered on November 25, 1998, William was ordered to pay appellant $7,000 a month in child support. At the time, William appeared to be receiving investment income of more than $70,000 per month.
For convenience, we refer to William by his first name. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
2005 Support Dispute
In January 2005, William filed an Order to Show Cause (OSC), requesting a reduction in his child support payments. In support thereof, he filed an income and expense declaration, indicating that he had no employment income and that his investment income had decreased to approximately $3,644 per month. Appellant retained respondents to represent her in opposition to William’s OSC.
Respondents deposed William in March 2005, and his testimony was consistent with his income and expense declaration.
On April 19, 2005, respondents filed a responsive declaration and memorandum of points and authorities in opposition to William’s OSC.
At the hearing on William’s OSC on May 4, 2005, the trial court calculated William’s child support obligations according to the Disso-Master formula, setting his monthly obligations at $1,046, retroactive to March 15, 2005.
Appellant Discharges Respondents; Respondents Learn of William’s Further Income
On May 17, 2005, appellant discharged respondents as her counsel and retained the Law Offices of Douglas A. Bagby (Bagby) to represent her further in the child support dispute.
At around the same time, respondents learned that on or about April 15, 2005, William received further dividend income from stock held by his family for him, in the amount of approximately $257,000. Respondents made sure that this information was relayed to Bagby so that an upward adjustment of William’s child support obligations could be effectuated.
Appellant’s Motion for Reconsideration
On July 1, 2005, on behalf of appellant, Bagby filed a motion to vacate and reconsider the family court’s June 3, 2005, child support order. Bagby argued, inter alia, that William had received additional dividend income that should be included in the calculation for child support.
Although the hearing on William’s OSC occurred in May 2005, the order was not entered until June 3, 2005.
After factoring in the additional income to William, the family court calculated his support obligation to be $2,775 per month, retroactive to March 15, 2005, and entered an order to that effect. Appellant also was awarded attorney fees.
Subsequent Stipulated Order of Child Support
Thereafter, appellant and William stipulated that further child support obligations would be set at $5,000 per month. On August 1, 2006, the family court entered an order on the parties’ stipulation.
Appellant Initiates the Instant Legal Malpractice Action
On May 3, 2006, appellant filed a complaint alleging legal malpractice against respondents. Respondents answered.
Respondents’ Successful Motion for Summary Judgment
On December 14, 2007, respondents filed a motion for summary judgment. Although they disputed liability, their motion was based solely on the issue of damages.
Appellant opposed respondents’ motion. In support thereof, appellant offered her own declaration and an expert declaration from Bagby. According to these declarations, appellant suffered damage stemming from respondents’ negligence, specifically (1) a reduction in the child support she originally had been awarded, and (2) $20,000 in attorney fees appellant incurred in connection with her motion for reconsideration.
In response, respondents filed a reply brief and objections to both appellant’s and Bagby’s declarations.
Following oral argument on respondents’ motion, the trial court sustained all of respondents’ objections to appellant’s evidence and then granted respondents’ motion. Judgment was entered in favor of respondents, and this appeal ensued.
DISCUSSION
I. Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. The Trial Court Properly Granted Respondents’ Motion for Summary Judgment
On appeal, appellant urges us to reverse the trial court’s order, contending that she demonstrated a triable issue of fact regarding damages she suffered as a result of respondents’ negligence. In support of her argument, appellant directs us to the two declarations offered in opposition to respondents’ motion for summary judgment, namely her declaration and Bagby’s declaration. The problem for appellant is that the trial court sustained all of respondents’ evidentiary objections to the substantive portions of both declarations. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [evidence to which objections have been made and sustained is not considered].) And, appellant does not challenge the trial court’s evidentiary rulings, let alone even advise of us of them. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B).) Appellant’s belated challenge to the trial court’s evidentiary rulings in her reply brief is too little, too late. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Thus, we are left with no evidence whatsoever of appellant’s claimed damages. Absent evidence of damages, we must affirm the trial court’s order.
Regardless, even if we were to consider appellant’s and Bagby’s declarations and respondents’ objections thereto, we agree that there was no triable issue of material fact. As the trial court rightly determined, the purported evidence is speculative and lacks foundation. For example, appellant declares that she incurred $20,000 in attorney fees as a result of respondents’ “failure to bring the arguments set forth in... Bagby’s declaration to the [family] court[’]s attention.” However, she lays no foundation for asserting that she even knows what those arguments were or whether they were made. Likewise, Bagby attests that had respondents presented evidence of William’s wealth and the “dramatic annual increase in the value of his stock portfolio” to the family court, the result would have been different. Such testimony constitutes nothing more than speculation and does not create a triable issue of fact. (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647; LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981 [“A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact”].) It follows that the trial court did not abuse its discretion in sustaining respondents’ evidentiary objections. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)
Furthermore, appellant argues that respondents failed to meet their initial burden in connection with their motion for summary judgment. As pointed out by respondents, appellant did not raise this argument below. Having neglected to raise this objection in the trial court, appellant has forfeited it on appeal. (DiCola v. White Brothers Performance Products, Inc., supra, 158 Cal.App.4th at pp. 676–677.)
Finally, throughout her appellate briefs, appellant argues that the trial court’s order should be reversed because the trial court (1) improperly focused on respondents’ alleged negligence (as opposed to just damages, which was the basis of respondents’ motion); and (2) erroneously weighed Bagby’s credibility. After reviewing the record, we see no such errors. In any event, we conducted a de novo review of respondents’ motion for summary judgment and, exercising our independent judgment as to the legal effect of the undisputed facts (Spitler v. Children’s Institute International (1992) 11 Cal.App.4th 432, 439), we conclude that respondents were entitled to judgment on the ground that appellant did not raise a triable issue of fact on the issue of damages.
DISPOSITION
The judgment of the trial court is affirmed. Respondents are entitled to costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.