Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Ct. No. BC346428, Jan A. Pluim, Judge. Reversed in part; affirmed in part.
Parker Mills and Howard M. Fields for Plaintiff and Appellant.
Haight Brown & Bonesteel LLP, Peter Q. Ezzell, Stephen M. Caine, Nancy E. Lucas; Palermo, Barbaro, Chinen & Pitzer LLP, and Richard L. Chinen for Defendants and Respondents Soldwedel, Palermo, Barbaro & Chinen; Palermo, Barbaro, Chinen & Pitzer, LLP; Richard L. Chinen; Peter R. Palermo; and Philip Barbaro, Jr.
TURNER, P. J.
I. INTRODUCTION
This is a legal malpractice action arising from a marital dissolution proceeding. Plaintiff, Ralph Leung, appeals from judgments on the complaint and the cross-complaint in favor of the defendants: Soldwedel, Palermo, Barbaro & Chinen; Palermo, Barbaro, Chinen & Pitzer; Richard L. Chinen; Peter R. Palermo; and Philip Barbaro, Jr. We affirm the judgments.
II. BACKGROUND
Plaintiff’s former wife, Susan Leung, filed a marital dissolution petition on January 17, 1997. Ms. Leung’s marital dissolution action was assigned case No. GD018931. To defend Ms. Leung’s action, plaintiff retained Mr. Chinen. Plaintiff responded to Ms. Leung’s petition on May 16, 1997. On July 8, 1998, Mr. Chinen served a preliminary declaration of disclosure on Ms. Leung, as required by Family Code, section 2104. (All further statutory references are to the Family Code unless otherwise noted.) When served, section 2104, subdivision (a) stated in part, “Within 60 days of service of the petition for dissolution or nullity of marriage or legal separation of the parties, each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.” (Stats. 1993, ch. 1101, § 6, p. 6204.) On November 24, 1998, Ms. Leung dismissed her petition without prejudice. Also on November 24, 1998, Commissioner Louise Halvey sua sponte deemed plaintiff’s response to Ms. Leung’s petition to be a new petition. The new matter in which plaintiff was designated as the petitioner was assigned the case No. GD023714. Commissioner Halvey gave Ms. Leung 30 days to respond. On December 5, 1998, Ms. Leung executed a notice and acknowledgment which indicated she was served with a summons and a blank confidential counseling statement. Effective January 1, 1999, section 2104, subdivision (a) was amended to state in part as it does now, “After or concurrently with service of the petition for dissolution or nullity of marriage or legal separation of the parties, each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.” (Stats. 1998, ch. 581, § 7.) No response was filed and Ms. Leung’s default was entered on March 2, 1999. Following a prove-up hearing, a judgment was entered. Ms. Leung’s motion to set the default judgment aside was denied on May 28, 1999. Ms. Leung sought reconsideration. On December 23, 1999, Commissioner Halvey, on her own motion, set aside the default judgment on grounds plaintiff had failed to comply with section 2104. No appeal was filed from the December 23, 1999 order setting aside the judgment. Mr. Chinen ceased representing plaintiff in July 2000. On July 9, 2004, following a court trial, a dissolution judgment was entered.
Commissioner Halvey’s November 24, 1998 minute order states: “The Court on its own motion corrects the court record as follows: By deeming the response in this case to be a petition in a new case and file number. The request for dismissal under this case number is allowed to proceed. The petitioner under this case number [Ms. Leung] will have to be served with the response, deemed a new petition, and have thirty days to respond.”
Commissioner Halvey ruled: “1. The Motion for Reconsideration of the court’s original denial of [Ms. Leung’s] set aside motion should properly be denied due to the fact that there was no reason why the original motion did not contain the grounds subsequently raised by [Ms. Leung] in her rehearing request. [¶] 2. The court will, however, on its own motion, pursuant to [Code of Civil Procedure sections] 473 [and Family Code sections 2110,] 2104 and 2106, grant its own set aside of the default judgment in all respects except status. And examination of . . . [sections] 2104 et seq. reveals the language to be mandatory with respect to a Preliminary Declaration of Disclosure. The court is of the view that filing such a document in an action which had been previously dismissed would not meet the legal requirements of that section, and the Final Declaration of Disclosure had not been timely filed, having been served shortly before the Default prove-up date. The court believed that such a preliminary declaration had been filed as required at the time of the original default prove-up, and [Frank] Salz [(who then represented Ms. Leung)] brought this matter to the court’s attention for the first time at the hearing of [Ms. Leung’s] request for reconsideration of the Motion to Set Aside the Judgment, at which she had been represented by other counsel, Mr. McCullough. The court is of the belief that given the vast differences in the values asserted by [Ms. Leung], that this is the kind of case that justice and the disclosure requirements require that there be a trial on the underlying issues. Thus a set aside will be granted, and the counsel are directed to contact each other and the clerk for a setting for [mandatory settlement conference] and trial. [¶] 3. [Ms. Leung] did fail to timely respond to the Petition, and the legal fees incurred by [plaintiff] in getting through the default prove-up will be the subject of a hearing on attorney fees to be conducted by the court at a time to be agreed upon by counsel for the parties, either prior to or simultaneous with the matter being set for [mandatory settlement conference] or trial.”
On January 25, 2006, plaintiff filed the present legal malpractice and contract breach action. Plaintiff alleged: defendants negligently failed to prepare and serve a preliminary declaration of disclosure; as a result, the default judgment was set aside; and the dissolution action proceeded to a full trial to his detriment. Defendants moved for summary judgment. The sole ground asserted in the summary judgment motion was that plaintiff could not establish he suffered any damages. Defendants reasoned that plaintiff suffered no damage because the value of his malpractice cause of action was limited to his actual interest in the marital estate. Summary judgment was entered in defendants’ favor.
Along with their answer to the complaint, defendants filed a cross-complaint for contract breach, quantum meruit, and account stated. Defendants alleged plaintiff had failed and refused to pay them $3,052.50 in attorney fees. Following a court trial, judgment was entered in defendants’ favor.
III. DISCUSSION
A. Defendant’s Summary Judgment Motion
First, the sole issue raised in defendants’ summary judgment motion directed at the complaint was that plaintiff could not establish he was damaged. Citing Loube v. Loube (1998) 64 Cal.App.4th 421, 426-427, defendants reasoned that the trial conducted in the dissolution litigation after the default judgment was set aside established the true value of the marital estate and the proper division of assets. Additionally, defendants asserted that plaintiff was judicially estopped to assert any damages were incurred when the default was set aside. Defendants’ brief separate statement was limited to these issues.
We need not address the precise damage and judicial estoppel issues raised by defendants. Plaintiff argues there is a triable issue as to whether he incurred attorney fees after the default judgment was set aside; a matter distinct from whether he suffered a detriment when the estate was divided after the trial in the marital dissolution litigation. Plaintiff presented evidence he incurred attorney fees in the sum of $134,355.17 and additional costs in the sum of $16,649 after the default judgment was set aside. If an attorney acts below the standard of care and a client incurs additional fees, there may be legal malpractice liability and damages. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 750-751; Orrick, Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1060-1061, fn. 5.) Apart from the issue posited by Loube v. Loube, supra, 64 Cal.App.4th at pages 426-427 raised in the summary judgment motion directed at the complaint, there is a triable issue as to whether plaintiff suffered damage when he incurred additional fees after the default judgment was set aside in the marital dissolution litigation. It bears emphasis the summary judgment motion did not assert no malpractice occurred. Rather, the sole issue raised in the summary judgment motion is that malpractice damages in the case of a lost claim are limited to its actual value as discussed in Loube v. Loube, supra, 64 Cal.App.4th at pages 427-428. The summary judgment motion and defendant’s separate statement did not discuss the malpractice or attorney fee issues. The matter was only briefly discussed in the reply.
Finally, there is no merit to defendants’ contention that it is speculative as a matter of law as to whether plaintiff’s fees incurred after the default was set aside are recoverable as legal malpractice damages. Defendants reason that since Commissioner Halvey set aside the default judgment on two grounds—the failure to serve the disclosure statement a second time and the vast differences in the parties’ assessments of the marital estate—it is speculative as to whether the failure to comply with section 2104, subdivision (a) was a legal cause of plaintiff’s damages in the form of his attorney fees. There were only two grounds in Commissioner Halvey’s December 23, 1999 order—the purported failure to comply with section 2104, subdivision (a) and the injustice resulting from failing to set aside the default judgment. This is a legal causation issue which, as noted, was only briefly raised in the reply. Legal cause is typically an issue for the jury. (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1463; Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) In order for negligent legal advice or conduct to constitute a legal cause, it must be more likely than not that the plaintiff would have received a more favorable result had the professional errors not occurred. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 [‘“but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result.” (Original italics.)]; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179 [same].) We cannot conclude that when one of the two grounds expressly cited by Commissioner Halvey was the result of the purported malpractice, the issue of legal cause is resolvable at the summary judgment stage on this record; particularly when the issue was not the basis of the summary judgment motion and separate statement and was only raised in the reply.
B. Trial On The Cross-Complaint
With respect to defendants’ cross-complaint to recover unpaid attorney fees, plaintiff argues he was improperly required to present properly qualified opinion testimony to establish they acted negligently. Plaintiff reasons no opinion testimony was required because as noted, section 2104, subdivision (a) states in part, “After or concurrently with service of the petition for dissolution or nullity of marriage or legal separation of the parties, each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.” (Italics added.) We review evidentiary rulings for an abuse of discretion. (Nadaf-Rahrov v. Neiman Marcus Corp., Inc. (2008) __ Cal.App.4th __, __ [83 Cal.Rptr.3d 190, 204]; People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.) We find no abuse of discretion.
Our Supreme Court has articulated the general rule applicable in actions alleging negligently performed professional services: “The standard of care against which the acts of [an attorney] are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.” (Sinz v. Owens (1949) 33 Cal.2d 749, 753; accord, Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) This rule applies to legal malpractice cases. (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239; Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1438-1441.) Opinion testimony may be unnecessary if reasonable minds cannot differ on the question whether the lawyer’s conduct satisfied the duty of care. (Lucas v. Hamm (1961) 56 Cal.2d 583, 591; see Betts v. Allstate Ins. Co. (1984) 154 Cal.App.3d 688, 716; Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975-976; Wright v. Williams (1975) 47 Cal.App.3d 802, 809.) But opinion testimony is generally required to establish whether a lawyer’s conduct fell below the standard of members of the profession in the same or a like locality under similar circumstances. (Kirsch v. Duryea (1978) 21 Cal.3d 303, 311; Lipscomb v. Krause, supra, 87 Cal.App.3d at p. 976.)
Here, that the statutory duty to serve the preliminary declaration of disclosure was mandatory does not establish Mr. Chinen was negligent. Mr. Chinen served the required declaration after Ms. Leung filed her dissolution petition and before plaintiff’s response thereto was deemed a new petition. Whether it fell below the standard of care to fail to re-serve the preliminary declaration of disclosure is not a question answered by the language of the statute. Accordingly, no abuse of discretion occurred when plaintiff was required to present opinion testimony by a properly qualified witness to establish defendants’ negligence as an offset defense.
However, our resolution of this question does not settle the issue of whether plaintiff is entitled to an offset for any damages he incurs on his complaint. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744; Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 859.) As noted, plaintiff alleges in his answer to the cross-complaint he is entitled to an offset for any damages imposed on his complaint. When the trial was held, what the parties characterize as a summary judgment had been entered on the complaint. We have reversed the order granting summary judgment on the complaint. Thus, if the damages on the complaint exceed those payable on defendant’s cross-complaint, then plaintiff may be entitled to an offset. Therefore, the June 9, 2007 judgment is affirmed insofar as it awards defendant damages and the sums set forth therein. The July 9, 2007 judgment is reversed in all other respects. In addition to a potential trial on the complaint, the cause is remanded for a limited retrial of the cross-complaint on plaintiff’s offset affirmative defense. The retrial will be limited solely to the question of whether any damages recovered by plaintiff exceed those recoverable by defendants on their cross-complaint. We express no opinion as to the effect of the findings relevant to the cross-complaint we have affirmed on plaintiff’s complaint.
IV. DISPOSITION
The summary judgment on the complaint is reversed. The judgment on the cross-complaint is affirmed in part and reversed in part as set forth in the body of this opinion. Plaintiff, Ralph Leung, is to recover his costs incurred on appeal jointly and severally from defendants, Soldwedel, Palermo, Barbaro & Chinen, Palermo, Barbaro, Chinen & Pitzer, Richard L. Chinen, Peter R. Palermo, and Philip Barbaro, Jr.
We concur: MOSK, J. KRIEGLER, J.