Opinion
G052792
11-22-2017
FERNANDO JUAREZ, Plaintiff and Appellant, v. LAW FIRM OF HIGBEE & ASSOCIATES, Defendant and Respondent.
Fernando Juarez, in pro. per.; Law Offices of Allan E. Perry and Allan E. Perry; Ostergar Law Group and Allen C. Ostergar III for Plaintiff and Appellant. Doyle, Schafer & McMahon and Jamie A. Mason for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00734637) OPINION Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Affirmed. Fernando Juarez, in pro. per.; Law Offices of Allan E. Perry and Allan E. Perry; Ostergar Law Group and Allen C. Ostergar III for Plaintiff and Appellant. Doyle, Schafer & McMahon and Jamie A. Mason for Defendant and Respondent.
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INTRODUCTION
Fernando Juarez sued his former attorneys, including the Law Firm of Higbee & Associates (Higbee & Associates), for legal malpractice and breach of written agreement based on counsel's representation of Juarez in his marital dissolution action with his ex-wife Sandra Georgi-Juarez (Georgi). The trial court granted a motion for summary judgment by Higbee & Associates on the ground that nothing the firm or its attorneys did or did not do caused Juarez harm. Juarez appealed from the judgment and from an order denying his motion for reconsideration.
We affirm. Juarez contended, primarily, that malpractice by his attorneys led the family court to find that a premarital agreement between Juarez and Georgi (the Prenuptial Agreement) was invalid and unenforceable. The Prenuptial Agreement included a waiver of spousal support and attorney fees. Juarez ultimately entered into a stipulated judgment by which he agreed to pay Georgi $40,000 in spousal support and attorney fees, upon which his support obligation would end.
The causation element of legal malpractice requires a plaintiff to prove that "but for the alleged negligence of the defendant attorney, the plaintiff 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.) Although causation is ordinarily a question of fact, it may be decided as a question of law if, under the undisputed facts, "there is no room for a reasonable difference of opinion." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.) Such is the case here: Under the undisputed facts there was no room for a reasonable difference of opinion about causation. That is to say, Juarez cannot show that but for the alleged negligence of Higbee & Associates the family court would have decided that the Prenuptial Agreement was valid and enforceable. In addition, the trial court did not err by denying Juarez's motion for reconsideration.
BACKGROUND: PREMARITAL AGREEMENTS
The validity of the Prenuptial Agreement is not an issue in this appeal because causation can be decided without resolving whether that agreement was enforceable. However, some background in premarital agreements is necessary, or at least helpful, in understanding the facts and issues presented.
"Parties contemplating marriage may validly contract as to their property rights, both as to property then owned and as to property and earnings that may be acquired during the marriage." (In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1052.) Family Code section 1615 (section 1615) addresses the enforceability of premarital agreements. Under section 1615, a premarital agreement will not be enforced if the party against whom enforcement is sought proves either (1) the party did not execute the premarital agreement voluntarily or (2) the premarital agreement was unconscionable when signed and before the agreement was signed, all three factors set forth in section 1615, subdivision (a)(2)(A), (B), and (C) were satisfied. Section 1615, subdivision (c) creates a presumption that a premarital agreement was not signed voluntarily unless the court makes written findings on all of the factors identified in section 1615, subdivision (c)(1) through (5).
Trial on the validity of the Prenuptial Agreement focused on section 1615, subdivision (a), and, in particular, whether Georgi voluntarily signed the agreement. A contested issue was whether Georgi was represented by counsel at the time the Prenuptial Agreement was signed. The family court found that Georgi was represented by counsel but did not sign the Prenuptial Agreement voluntarily because Juarez's counsel did not provide Georgi's counsel with the final version of the agreement before Georgi signed it. Whether that decision was correct, and whether the Prenuptial Agreement was enforceable under section 1615 are not issues we need to resolve. The issue we address is whether, on the undisputed facts, the family court would have reached a decision more favorable to Juarez but for the alleged negligence of his attorneys.
Section 1615, subdivision (a) states: "(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following: [¶] (1) That party did not execute the agreement voluntarily. [¶] (2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party: [¶] (A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. [¶] (B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. [¶] (C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party."
FACTS
I.
The Prenuptial Agreement
Juarez and Georgi were married on September 30, 2006. Eight days earlier, on September 22, Juarez and Georgi signed the Prenuptial Agreement.
The Prenuptial Agreement states at paragraph 15 that in the event of divorce "there will be no compensation of any kind to either party" and "[p]ayment of legal fees and separation costs will be paid equally by each partner." The Prenuptial Agreement states at paragraph 16 that "[e]ach party waives any right, statutory or otherwise, that he or she may have to receive spousal support from the other party, and each party releases the other party from any obligation statutory or otherwise to provide spousal support to the releasing party."
II.
Award of Temporary Spousal Support and Bifurcation of
Issue of Validity of Prenuptial Agreement
Georgi filed a petition for dissolution of marriage in January 2013 and requested an order for temporary spousal support and attorney fees. In response, Juarez asserted both he and Georgi waived any right to spousal support in the Prenuptial Agreement.
At the hearing on Georgi's request for temporary spousal support and attorney fees, conducted in July 2013, the court stated it could not find a copy of the Prenuptial Agreement in the court file. Juarez's counsel (Bettina Yanez) explained that Georgi had the original, Juarez did not have access to it, and he was looking for a copy. Yanez stated she had scheduled a deposition at which Georgi was to produce the agreement. After more comment from counsel, the court suggested taking a break to allow counsel to "come to some arrangement on a temporary basis." The court stated: "[T]he first thing is, is there even a prenuptial agreement in existence." After the recess, Yanez requested a continuance and informed the court that Juarez had given her a copy of a premarital agreement that had "corrections and additions by different attorneys." Yanez expressed hope that Georgi would produce the final, signed agreement at her deposition and stated that Juarez's son was looking for a copy of the signed agreement.
The court bifurcated the issue of the validity of the Prenuptial Agreement, set that matter for trial, and awarded Georgi temporary spousal support of $2,000 per month and attorney fees of $7,500. In early August 2013, Juarez substituted Natasha Buchanan and Cynthia Underwood of Higbee & Associates as counsel in place of Yanez.
III.
Trial on the Validity of the Prenuptial Agreement
A. Pretrial
In January 2014, counsel for Juarez filed a trial brief addressing the validity of the Prenuptial Agreement. Among other things, the brief argued the Prenuptial Agreement was not unconscionable, Georgi had been represented by counsel, and she had signed the agreement voluntarily. Counsel for Georgi filed a trial brief arguing the Prenuptial Agreement was invalid because it did not disclose Juarez's property and Georgi was not represented by counsel when she signed the agreement.
In a letter to Juarez dated January 23, 2014, Underwood wrote: "As we discussed previously, in great length, there is a possibility that Judge Salter may find that the prenuptial agreement was not executed voluntarily and may find that either a provision, or the entire agreement, is not valid. Previously, we had discussed the possibility of settlement . . . . Although it is ultimately your decision, I would like to advise you once more that there is the possibility that the agreement may be deemed invalid and present you with the option of settling the matter prior to the hearing." Underwood also addressed her contact with Laurence Clark, who represented Juarez in preparing the Prenuptial Agreement: "[A]s we discussed telephonically earlier today, I spoke with the attorney who drafted your prenuptial agreement, Laurence Clark. Mr. Clark informed me that he does not recall that there was ever a meeting of the minds regarding the final terms of the prenuptial agreement. Accordingly, you and I decided that it would not be advantageous to your position to have him testify at trial on Monday. As such, I have drafted a letter to Mr. Clark withdrawing the previously served subpoena. I have enclosed this letter for your records." B. Trial
Trial on the issue of the validity of the Prenuptial Agreement was conducted in January 2014. Georgi, Juarez, and Georgi's attorney, Mark Edwards, testified.
1. Edwards's Testimony
Edwards testified that he represented Georgi in September 2006 and confirmed he had signed a retainer agreement dated September 11, 2006. The retainer agreement, which was received into evidence as exhibit 106, also bears Georgi's signature. The agreement states that Edwards would "[r]eview; explain; edit; change and negotiate a pre-nuptial agreement." Edwards testified that he had told Georgi he would do what he could, but he was not a family law attorney, and he advised her to hire a family law attorney.
Edwards made one set of edits to the draft premarital agreement. He did not know whether his edits were incorporated into the final agreement because he never saw it. He did not negotiate the Prenuptial Agreement but did meet with Georgi on September 11 and reviewed a draft of the Prenuptial Agreement with her. Edwards did not have a specific recollection of reviewing the waiver of the spousal support provision with her.
Edwards testified he spoke with Clark to tell him that he had reviewed the draft premarital agreement and had made some "preliminary suggestions" to the agreement based on conversations with Georgi. Edwards asked Clark to consider the suggestions while Edwards helped Georgi find a family law attorney. Edwards's timesheets showed that he made edits to a draft premarital agreement on September 12, 13, and 14, 2006. On September 14, Edwards drafted a letter to Clark about proposed changes to the premarital agreement. He expected, but did not receive, a response to his letter.
Edwards spoke by telephone with Georgi on September 23, 2006 but could not recall specifically what they talked about. He did not know that Georgi had signed the Prenuptial Agreement until he received a signed copy of it on September 26.
2. Juarez's Testimony
Juarez testified that soon after he and Georgi had become engaged, they had discussed the possibility of entering into an agreement to waive spousal support in the event the marriage was dissolved. They had talked frequently about entering into a premarital agreement, and Georgi never expressed any reservations about doing so. In August 2006, Juarez retained Clark to draft a premarital agreement. Juarez told Georgi to hire an attorney.
Juarez received a draft agreement from Clark in the latter part of August. Juarez reviewed every provision of the agreement with Georgi, discussed his assets with her, showed her his monthly bank account statements, and offered to let her review his entire financial file. He told Georgi that he had eight investment accounts and the value of each account, and told her that he owned a home, there was no mortgage on the home, and the approximate market value of the home. He gave Georgi a statement of his monthly dividend income and told her the amount of his monthly social security benefits. He told Georgi his net worth and gave her a list of his assets; however, the list was not attached to the Prenuptial Agreement and he could not produce it at trial. According to Juarez, Clark prepared the Prenuptial Agreement. Juarez and Georgi signed the Prenuptial Agreement before a notary on September 22, 2006.
Juarez testified that, on September 22, he and Georgi drove to Clark's office, where he picked up the Prenuptial Agreement. He asked her if she wanted to take the agreement to her attorney, but she was "'satisfied that all the changes were made.'" Juarez then drove to his home, where he and Georgi compared the Prenuptial Agreement to the draft with the changes they had made. They signed the Prenuptial Agreement, had it notarized, and went to get a marriage license. Juarez testified he did not force or coerce Georgi to sign the Prenuptial Agreement. During their marriage, Juarez and Georgi abided by the terms of the Prenuptial Agreement, and she never expressed discontent with it.
3. Georgi's Testimony
Georgi testified that she and Juarez had discussed a premarital agreement once, in the summer of 2006. They had discussed keeping their respective trusts as separate property and each depositing an equal amount into a joint account for living expenses. Juarez had shown her a schedule of his assets and liabilities, which revealed he had income from tax-free bonds, a retirement income from his deceased wife, social security benefits, and a home. Georgi did not ask to see any other financial statements. She and Juarez never discussed waiving spousal support.
Georgi testified that she had asked Edwards, who had been her interior decorating client, to look at the draft prenuptial agreement. On September 11, 2006, Georgi visited Edwards at his office. He presented a retainer agreement (exhibit 106), which she signed without reading. She did not realize she was signing a contract; she had asked for Edwards's help in reviewing a prenuptial agreement and did not think she was hiring him. Georgi sat in Edwards's office while Edwards read the draft Prenuptial Agreement. Georgi expressed some concerns about losing health insurance benefits and the fairness of equal contributions to the joint account, but could not recall any specific provision of the Prenuptial Agreement that she had discussed with Edwards. She did not ask him to explain the Prenuptial Agreement and did not ask him questions about it.
Georgi received by mail a copy of the letter that Edwards wrote to Clark with suggestions for the agreement. She read the letter but did not give any thought to whether it expressed her concerns. At some point in time, Edwards told her not to sign the Prenuptial Agreement and advised her to seek assistance from a family law attorney. She signed the Prenuptial Agreement because "[t]here wasn't time" to consult a family law attorney and she loved and trusted Juarez.
Georgi testified that on the morning of September 22, 2006, she drove from her house to Juarez's house, and from there they ran errands. She did not remember having gone to Clark's office with Juarez that day. She did remember having gone to Juarez's house on that date but she and Juarez did not review the Prenuptial Agreement. After they had obtained the marriage license and had done their errands, Juarez said he wanted to get the Prenuptial Agreement notarized. He handed Georgi the Prenuptial Agreement at the notary's office, which was where she first saw the final version. She looked through the agreement and was surprised to see certain provisions. She trusted Juarez and did not even think about calling Edwards. Juarez did not tell her that she had to sign the agreement there and then.
Georgi signed the Prenuptial Agreement before a notary on September 22, 2006. She did not read the agreement before signing it. She acknowledged that she did intend, as stated in the agreement, "'to protect each other's assets for the benefit of their heirs and to set forth how as a married couple they will carry out their financial expenditures during the marriage.'" Georgi did not express any concerns about the agreement.
IV.
The Family Court's Ruling
Several days after taking the matter under submission, the family court issued a written ruling finding the Prenuptial Agreement was unenforceable. The court stated its ruling "turns on the professional involvement of Edwards in the negotiations of the pre-nuptial." Juarez had contended that Edwards had represented Georgi during the negotiations over the Prenuptial Agreement. The court agreed and found, "[d]espite the inconsistent testimony," that Edwards was Georgi's attorney during the negotiations. The court found that Juarez's attorney, Clark, did not contact Edwards, never sent him drafts of the Prenuptial Agreement, and did not send him a copy of the final agreement. The court concluded: "The purpose in retaining counsel is for both sides to work through their respective attorneys. Edwards testified he expected to hear back from [Juarez]'s counsel but he never did. When [Juarez] presented the final draft to [Georgi] for the first time, which was at the notary, [Georgi] did not receive the protection [section] 1615 was designed to promote."
The court also found that Georgi was a more credible witness than Juarez. The language of the agreement, the many grammatical errors in it, the use of the nickname Sandy instead of a legal name, and a letter Juarez wrote to Clark thanking him for his "assistance" in drafting the agreement all led the court to conclude that Juarez primarily drafted the Prenuptial Agreement.
V.
Settlement of the Dissolution Action
The parties engaged in settlement negotiations resulting in a stipulated judgment signed in May 2014. The stipulated judgment recites that the Prenuptial Agreement is "null, void and unenforceable." Juarez agreed to pay Georgi $40,000 and his obligation to make support payments and pay her attorney fees would thereupon end. The stipulated judgment was signed by Mathew K. Higbee of Higbee & Associates as attorney for Juarez.
About a month after the stipulated judgment was signed, Juarez substituted in Allan E. Perry as counsel in place of Higbee & Associates. Georgi brought a motion to compel entry of judgment based on the stipulated judgment. In August 2014, the family court granted the motion pursuant to Code of Civil Procedure section 664.6, and judgment was entered. Juarez appealed from the judgment. In a nonpublished opinion, we dismissed the appeal on the ground Juarez had stipulated that the Prenuptial Agreement was unenforceable. (In re Marriage of Georgi-Juarez and Juarez (June 17, 2016, G050639).)
PROCEDURAL HISTORY
While Juarez's appeal from the judgment was pending, Juarez brought this lawsuit against Yanez, Higbee & Associates, and Clark. Juarez asserted a cause of action for legal malpractice and a cause of action for breach of written agreement and alleged that all of his prior attorneys breached their duty of care in representing him. As to Higbee & Associates, Juarez alleged that Underwood "failed to present key testimony and evidence before the Court in the Dissolution Action on January 27, 2014, namely she failed to properly examine [Georgi] and Mark Edwards or show their numerous inconsistencies and failed to call Clark or offer his file during the Trial."
Later, in responses to interrogatories, Juarez asserted that Underwood breached her duty of care by failing to: (1) present the police report that Juarez filed with the Orange County Police Department on December 29, 2012; (2) subpoena any officers; (3) provide a copy of Clark's entire file; (4) depose Clark or call him as a witness; (5) offer all correspondence between Juarez and Clark and all correspondence between Clark and Edwards; (6) properly cross-examine Georgi and Edwards; (7) call other witnesses who knew about the Prenuptial Agreement; and (8) provide the court with the original Prenuptial Agreement.
Higbee & Associates moved for summary judgment and alternatively for summary adjudication on the ground Juarez could not, as a matter of law, prove that anything Underwood did or did not do caused him damage. In support of the motion, Higbee & Associates submitted a declaration from attorney Steven A. Mindel, a certified family law specialist. Mindel had reviewed the court file and various other documents and expressed these opinions:
(1) "[T]he attorneys at Higbee & Associates exercised reasonable care and skill at all times during their representation of [Juarez] in the dissolution action. I am unable to identify any act or omission on the part of any attorney at Higbee & Associates that breached the standard of care in the legal profession."
(2) "Ms. Underwood was fully prepared to take this matter to trial on January 27, 2014 and represented [Juarez] competently at that time. Ms. Underwood presented all key testimony and evidence before the Court on January 27, 2014. Ms. Underwood also properly examined Mark Edwards, [Georgi], and [Juarez] on the witness stand."
(3) "[T]he standard of care did not require that Ms. Underwood depose Laurence Clark . . . or call him as a witness at the January 27, 2014 trial, as his testimony was potentially adverse to [Juarez]'s interest. Similarly, the standard of care certainly did not require that . . . all correspondence between Laurence Clark . . . and Mark Edwards . . . and all correspondence between Laurence Clark . . . and [Juarez] be entered into evidence at the time of trial."
(4) "[I]t was perfectly acceptable and within the standard of care for the attorneys at Higbee & Associates to recommend settlement to [Juarez] after the prenuptial agreement was deemed unenforceable by the Court on January 30, 2014. It is my unequivocal opinion that the settlement of $40,000.00 negotiated on behalf of [Juarez] was reasonable and appropriate given the facts of the underlying matter."
(5) "[N]o act or omission on the part of any attorney at Higbee & Associates, including but not limited to, Cynthia Underwood, . . . Natasha Buchanan, . . . and Mathew Higbee, . . . caused any harm nor was a substantial factor in causing any harm to [Juarez]. [Juarez] was not forced to pay spousal support and attorneys fees to [Georgi] as a result of anything any attorney at Higbee & Associates . . . did or failed to do. The Court found the prenuptial agreement to be invalid and unenforceable since it did not comply with Family Code Sections 1612 and 1615." (Underscore in original.)
In opposition to the summary judgment motion, Juarez submitted a declaration from Christopher Rolin, a certified specialist in legal malpractice, who had served as an expert witness in other cases in the areas of legal malpractice, breach of fiduciary duty, fee disputes, and legal ethics. Rolin reviewed various materials, including Mindel's declaration, and concluded that "the services rendered by Higbee [& Associates] in Mr. Juarez'[s] underlying dissolution action, fell below the standard of care." Rolin concluded the conduct of Higbee & Associates fell below the standard of care in these ways:
(1) Higbee & Associates did not file a motion for reconsideration of the July 22, 2013 order awarding Georgi temporary spousal support and attorney fees.
(2) Higbee & Associates did not appeal from the July 22, 2013 order awarding Georgi temporary spousal support and attorney fees despite Juarez's request that they do so.
(3) Higbee & Associates filed but took off calendar a motion to set aside the July 22, 2013 order awarding Georgi temporary spousal support and attorney fees.
(4) Higbee & Associates had Underwood, an inexperienced attorney, try the issue of the validity of the Prenuptial Agreement instead of her supervising attorney, who had more experience than she did.
(5) Underwood did not challenge the credibility of Georgi and her version of the events leading to the signing of the Prenuptial Agreement. This was important because Georgi's version of events differed from Juarez's version, and the family court found Georgi to be more credible.
(6) "Underwood failed to raise the crucial issue that the final agreement contained all of the salient changes requested by Mr. Edwards. She failed to point out that there was no request to change the attorney's fees provision, or the spousal support provision."
(7) "Underwood failed to point out that Mr. Edwards was still representing [Georgi] at the time that the prenuptial agreement was signed."
(8) Higbee & Associates failed to subpoena Clark's file relating to the Prenuptial Agreement which, Rolin opined, likely would have prevented the family court from concluding that Juarez had drafted the Prenuptial Agreement.
(9) Underwood failed to call Juarez's son, daughter, and son-in-law as witnesses at trial, and "[t]heir testimony could have proved very important and persuasive, especially to contradict the testimony of [Georgi] that the prenuptial agreement was . . . Juarez'[s] idea and that she had gone to the notary and signed the agreement, essentially under coercion."
(10) Underwood did not cross-examine Georgi or Edwards and did not introduce testimony from their respective deposition transcripts as impeachment and, as a result, the family court found Georgi to be a more credible witness than Juarez.
Rolin concluded by declaring: "[I]f the Higbee firm's conduct did not fall below the standard of care, the results would have been different. Judge Salter would have reversed his July, 2013 ruling and he would have found the prenuptial agreement to be legally valid and enforceable. These rulings would have resulted in Mr. Juarez paying no attorneys' fees and no spousal support, and he would have gotten his very expensive wedding ring back."
Higbee & Associates filed objections to nine parts of Rolin's declaration. Juarez's counsel did not submit objections to Mindel's declaration and did not respond to Higbee & Associates' objections to Rolin's declaration.
The trial court granted the motion for summary judgment as to both the first and second causes of action on the ground there was no triable issue of material fact on the element of causation. In the order granting summary judgment, the court sustained objections 1 through 4 and 6 through 9 to Rolin's declaration, which included objections to Rolin's concluding opinion about causation. The court concluded, based on all the papers filed in support of and in opposition to the motion for summary judgment, that the issue of causation could be decided as a matter of law in favor of Higbee & Associates on both causes of action. Judgment was entered in favor of Higbee & Associates.
Before entry of judgment, Juarez brought a motion for reconsideration, which the court denied. Juarez timely appealed from the judgment and the order denying his motion for reconsideration.
DISCUSSION
I.
The Trial Court Did Not Err By Granting Summary
Judgment Based on Lack of Causation
A. Standard of Review
A trial court properly grants summary judgment if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
"Under '[t]he historic paradigm for our de novo review of a motion for summary judgment . . . [w]e first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine if the moving party has established a prima facie entitlement to judgment in its behalf. Only if the moving party has satisfied this burden do we consider whether the opposing party has produced evidence demonstrating there is a triable issue of fact with respect to any aspect of the moving party's prima facie case.' [Citation.]" (Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 197.) B. Professional Negligence
1. Causation May Be Decided as a Matter of Law.
Juarez's complaint asserted a cause of action for professional negligence and a cause of action for breach of written agreement. The elements of professional negligence are: "'(1) the duty of the attorney to use such skill, prudence, and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage.'" (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.) The trial court granted summary judgment on the ground Juarez could not prove the third element, causation.
As to causation, a plaintiff must prove that "but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred." (Viner v. Sweet, supra, 30 Cal.4th at p. 1241.) "As such, a determination of the underlying case is required. This method of presenting a legal malpractice lawsuit is commonly called a trial within a trial. It may be complicated, but it avoids speculative and conjectural claims." (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357.)
The issue of causation, though ordinarily a question of fact, may be decided as a question of law if, under the undisputed facts, "there is no room for a reasonable difference of opinion." (Kurinij v. Hanna & Morton, supra, 55 Cal.App.4th at p. 864.) Thus, in reviewing the judgment, we ask whether, under the undisputed facts, there is room for a reasonable difference of opinion on the question whether, but for the alleged negligence of Higbee & Associates, Juarez would have obtained a more favorable judgment or settlement.
2. What Higbee & Associates Did and Did Not Do Is Undisputed.
We start by determining which facts are disputed. In that regard, what Higbee & Associates, and Underwood in particular, did or did not do in representing Juarez is not disputed in any material way. Higbee & Associates did not file a motion for reconsideration of the July 22, 2013 order awarding Georgi temporary spousal support and attorney fees, filed but then took off calendar a motion to set aside that order, and did not appeal from it despite Juarez's request that they do so. Higbee & Associates had Underwood try the issue of the validity of the Prenuptial Agreement instead of her supervising attorney.
Higbee & Associates did take the deposition of Clark. Juarez's claim to the contrary is inaccurate. There is no evidence that Higbee & Associates subpoenaed Clark's file. Juarez contends that Underwood did not cross-examine Georgi and Edwards. But Underwood called both Georgi and Edwards as witnesses and examined them. Underwood had Georgi confirm that she signed the retainer agreement with Edwards, argued that Georgi could have called Edwards at any time before signing the Prenuptial Agreement, and argued that Edwards continued to represent Georgi after September 22, 2006. Although Underwood did not attempt to impeach Georgi with her deposition testimony, Underwood's examination of Juarez drew Georgi's credibility into question. Underwood did not call Juarez's son, daughter, or son-in-law as witnesses at trial.
Underwood argued that Edwards made revisions to the draft Prenuptial Agreement and those revisions were included in the final agreement. Underwood did not argue specifically that neither Edwards nor Georgi asked for a change in the attorney's fees provision or the spousal support provision. However, the copy of the Prenuptial Agreement with interlineations and additions made by Edwards was received into evidence as exhibit 116, and Edwards's letter to Clark regarding the proposed revisions to the agreement was received into evidence as exhibit 108.
3. Juarez Would Not Have Obtained a Better Result But for the Conduct of Higbee & Associates.
In addressing causation, we ask whether Juarez would have obtained a better result "but for" Higbee & Associates' actions in not filing a motion for reconsideration of the July 22, 2013 order, not directly appealing from that order, or taking off calendar a motion to set aside that order. We can decide this as a matter of law. There is no room for a reasonable difference of opinion as to the whether either of those pretrial motions or an appeal would have made a difference because spousal support and attorney fees depended on the issue of the validity of the Prenuptial Agreement, which had been bifurcated and reserved for trial at a later time. Had Higbee & Associates pursued the motion for reconsideration or the motion to set aside, and the family court in response changed its mind about temporary spousal support and attorney fees, the court would certainly have awarded them retroactively (and possibly in a higher amount) after it found the Prenuptial Agreement was unenforceable. As to the appeal, we can say with some certainty that a direct appeal from the July 22 order would not have been resolved (absent settlement) before the trial.
We also conclude that but for the alleged deficiencies in the preparation for and conduct of trial, Juarez would not have obtained a more favorable judgment or settlement. On the issue of causation, the expert declarations appear to be in direct conflict. Mindel concluded Higbee & Associates did nothing falling below the standard of care but, if it did, nothing Higbee & Associates did or did not do caused Juarez any harm. Rolin concluded that Higbee & Associates engaged in conduct falling below the standard of care and this negligence caused Juarez harm.
But conflicting declarations do not necessarily create a triable issue of material fact. What Underwood did or did not do is essentially undisputed. The trial court sustained Higbee & Associates' objections to Rolin's opinion that Underwood's conduct of trial caused the family court to find that Georgi was more credible, and to Rolin's ultimate opinion on causation. Juarez does not challenge any of the trial court's evidentiary rulings.
With or without Rolin's opinion, the undisputed facts established no causation as a matter of law. The family court's conclusion that the Prenuptial Agreement was invalid was based on a narrow ground. The court found—as Juarez had asserted—that Georgi was represented by attorney Edwards during the negotiations. The court found that Juarez's attorney, Clark, did not send Edwards the final version of the Prenuptial Agreement. Thus, the court found, "[w]hen [Juarez] presented the final draft to [Georgi] for the first time, which was at the notary, [Georgi] did not receive the protection [section] 1615 was designed to promote." While the court found Georgi to be more credible than Juarez, the factual basis for the court's ruling was the lack of evidence that Clark had sent the final agreement to Edwards.
There could be no reasonable difference of opinion about causation because none of the things that Rolin claimed Underwood should have done would have had any effect on the findings on which the family court based its decision. The court agreed with Juarez that Georgi was represented by counsel. Doing more to challenge Georgi's credibility would not have changed the outcome because under either Georgi's or Juarez's version of events, Clark never sent the final version of the Prenuptial Agreement to Edwards. Moreover, the trial court sustained Higbee & Associates' objections to Rolin's conclusion that the trial court found Georgi to be more credible than Juarez because Underwood did not cross-examine Georgi and Edwards and did not impeach them with their respective deposition testimony.
In opposition to the summary judgment motion, Juarez submitted two pages of Georgi's deposition transcript which, he contended, should have been used for impeachment. In those passages, Georgi testified she did not sign a retainer for legal services with Edwards, did not pay him, and did not discuss the draft prenuptial agreement with him. At trial, Georgi testified that she did not realize she was signing a retainer agreement and that she did not recall discussing any specific provision of the draft premarital agreement with him. This slight variation in testimony would not have caused the family court to find Georgi to be less credible than Juarez.
The evidence submitted by Underwood to the family court showed that the Prenuptial Agreement included Edwards's proposed changes and that neither Edwards nor Georgi ever objected to the spousal support provision or the attorney fees provision. The family court considered all of the evidence. Any failure by Underwood to argue those points further made no difference because the family court's decision was based on the finding that Clark never sent the final Prenuptial Agreement to Edwards.
Calling Clark as a witness at trial almost certainly would have hurt rather helped Juarez because Clark testified in his deposition he believed the Prenuptial Agreement was never valid. Underwood informed Juarez by letter that it "would not be advantageous" to have Clark testify at trial. Juarez submitted no admissible evidence to show how Clark's file would have been helpful to his case. The trial court sustained Higbee & Associates' objections to lines from Rolin's declaration asserting that Clark's file "would have likely prevented the judge from concluding that Mr. Juarez had drafted the agreement." Juarez submitted no admissible evidence that testimony from his son, daughter, or son-in-law would have helped him at trial, and the trial court sustained Higbee & Associates' objections to lines from Rolin's declaration describing the supposed substance of their testimony.
4. The Trial Court Considered All of the Evidence and Did Not Grant Summary Judgment Based on a Technicality.
Juarez argues the trial court should have considered all of the evidence presented and not just his responses to Higbee & Associates' separate statement of undisputed facts. The order granting summary judgment states that in making its ruling the court fully considered "the papers filed in support of and in opposition to the motion, including the points and authorities, declarations, separate statements of undisputed material fact, the exhibits and evidence contained in the moving and opposing papers, and the inferences reasonably deducible therefrom."
Juarez also argues the trial court granted the motion for summary judgment based on a "technicality" in his opposing separate statement of undisputed facts. Higbee & Associates' Undisputed Fact No. 51 was "[n]o act or omission on the part of any attorney at Higbee & Associates . . . caused any harm nor was a substantial factor in causing any harm to [Juarez]." As evidence creating a disputed issue, Juarez cited only paragraph 24 of Rolin's declaration, which expressed Rolin's ultimate opinion that the alleged negligence of Higbee & Associates did cause harm to Juarez. The trial court sustained Higbee & Associates' objections to paragraph 24 and found Undisputed Fact No. 51 to be undisputed.
Juarez's opposition to the motion for summary judgment was not procedurally defective, and Juarez's counsel timely filed all necessary opposition papers. The trial court had discretion, but was not required, to consider evidence submitted by Juarez but not identified in response to Undisputed Fact No. 51. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 311, 316.) The trial court did consider all of Rolin's declaration and, in the order granting summary judgment, stated it had considered all of the papers filed in support of and in opposition to the motion, including declarations.
Juarez contends that citing only to paragraph 24 of Rolin's declaration was a "procedural defect" that he should have been allowed to cure by citing to other passages of Rolin's declaration. The cases cited by Juarez do not support that contention. In Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, a local courtroom rule misled counsel to miss the deadline for filing opposition and separate statement. (Id. at p. 1161.) The trial court granted summary judgment in part due to the lack of opposition and denied the motion for reconsideration. (Id. at p. 1154.) The Court of Appeal reversed because the local courtroom rule was in conflict with the Code of Civil Procedure. (Id. at p. 1158.) In Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 97-99, the Court of Appeal reversed summary judgment because the trial court did not give the opposing party the opportunity to cure the failure to file a separate statement. In Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 33, the Court of Appeal concluded the trial court erred by not considering a tardy opposition filed by the opposing party's recently-retained counsel. C. Breach of Written Agreement
Juarez's second cause of action was for breach of written agreement. The court granted summary judgment of the second cause of action based on lack of causation. The order granting summary judgment states "[t]he second cause of action claims the identical damages as does the first, and is the tort claim in disguise, and thus it fails along with the first cause of action."
Juarez argues that causation is not an element of a cause of action for breach of written agreement. He is mistaken. "'A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.'" (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402, italics added.) "Implicit in the element of damage is that the defendant's breach caused the plaintiff's damage. Civil Code section 3300 generally requires proof of causation: 'For the breach of an obligation arising from contract, 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.' (Italics added.) 'An essential element of a claim for breach of contract are damages resulting from the breach. [Citation.] Causation of damages in contract cases requires that the damages be proximately caused by the defendant's breach. [Citations.]' [Citations.]" (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352, fn. omitted.)
In addition, a professional negligence cause of action is considered to be in tort even if pleaded as a breach of contract. (DeMirjian v. Ideal Heating Corp. (1949) 91 Cal.App.2d 905, 909; Automobile Ins. Co. v. Union Oil Co. (1948) 85 Cal.App.2d 302, 307.) The allegations of a contractual relationship serve the purpose of showing the "the plaintiff . . . was lawfully in the position or situation at the time the defendant's breach occurred.'" (DeMirjian v. Ideal Heating Corp., supra, 91 Cal.App.2d at p. 909.)
Accordingly, the lack of causation justifying summary judgment of the professional negligence cause of action also justified summary judgment of the breach of written agreement cause of action.
II.
The Trial Court Did Not Err by Denying Juarez's
Motion for Reconsideration
Code of Civil Procedure section 1008, subdivision (a) requires a party moving for reconsideration to state by affidavit "what new or different facts, circumstances, or law are claimed to be shown." We review an order denying a motion for reconsideration under the abuse of discretion standard. (County of Los Angeles v. James (2007) 152 Cal.App.4th 253, 256.)
After the trial court granted Georgi's motion for summary judgment, Juarez moved for reconsideration of that decision. As new or different facts, Juarez submitted the declaration of his attorney, Allan Perry, who stated that "[he] had never seen a Motion for Summary Judgment granted, in a professional liability case, when there are two opposing expert declarations filed by the parties." Perry explained that, in response to Undisputed Fact No. 51 of Higbee & Associates' statement of undisputed facts, his law firm cited only to paragraph 24 of Rolin's declaration, which expressed Rolin's opinion that the alleged negligence of Higbee & Associates did cause Juarez harm. The trial court sustained Higbee & Associates' objection to paragraph 24 of Rolin's declaration and then found Undisputed Fact No. 51 to be, indeed, undisputed.
In his declaration, Perry stated his firm had made a mistake in only citing to paragraph 24 of Rolin's declaration in response to Undisputed Fact No. 51 and should have cited to other passages from that declaration concerning causation. Perry claimed the court's ruling sustain Higbee & Associates' objections could not have been anticipated. Perry's declaration did not present new or different facts. Perry's declaration asserted that his law firm had made a mistake, which is not a basis for a motion for reconsideration. (See Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.)
Juarez cites Kalivas v. Barry Controls Corp., supra, 49 Cal.App.4th 1152, in which the plaintiff moved for reconsideration of an order granting the defendant's motion for summary judgment on the ground that a courtroom rule had misled counsel to miss the deadline for filing opposition and a separate statement. (Id. at p. 1161.) The trial court granted summary judgment in part due to the lack of opposition and denied the motion for reconsideration. (Id. at p. 1154.) The Court of Appeal reversed because the local courtroom rule was in conflict with the Code of Civil Procedure. (Id. at p. 1158.) The plaintiff had set forth circumstances justifying reconsideration because "[t]he courtroom local rule misled [plaintiff]'s counsel, so that he filed no opposition and separate statement and did not appear at the hearing on the summary judgment motion." (Id. at p. 1161.)
Juarez was not misled by a local courtroom rule. He timely filed opposition, including an expert declaration, to the summary judgment motion. He does not assert new or different facts that he was unable to present with that opposition but asserts only that his law firm did not include a particular citation to evidence in response to the separate statement. The trial court did not err in denying Juarez's motion for reconsideration.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.