Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00116745, Randell L. Wilkinson, Judge.
Hunt & Adams and John C. Adams III for Plaintiff and Appellant.
The Duringer Law Group and Eric J. Bautista for Defendants and Respondents.
OPINION
O’LEARY, ACTING P. J.
Alan MacMillan appeals from a summary judgment granted in this legal malpractice action. MacMillan sued his former attorneys, The Duringer Law Group (DLG), Scott R. Andrews, and Stephen C. Duringer (hereafter referred to collectively as the attorneys unless the context indicates otherwise), alleging the attorneys mishandled an unlawful detainer action against one of MacMillan’s commercial real property tenants. MacMillan contends the trial court abused its discretion by granting the attorneys’ summary judgment motion solely due to procedural defects in MacMillan’s separate statement. Although we agree the procedural errors did not warrant the trial court’s response, after conducting a de novo review we conclude summary judgment was nonetheless proper. The attorneys’ moving papers demonstrated MacMillan could not prove all the elements of his causes of action, and MacMillan’s opposition failed to present evidence demonstrating there were triable issues of fact. Accordingly, we affirm the judgment.
FACTS AND PROCEDURE
Background
We begin with the following undisputed background facts. MacMillan is the owner of a multi-unit commercial real property located in Garden Grove, which includes the unit at issue in this case (the premises). Kenski Properties, Inc. (Kenski Properties), owned by Linda Kenski, is the property management company that manages MacMillan’s property. DLG is a law firm that specializes in unlawful detainer actions and since 1987 was retained by Kenski Properties to handle its evictions.
In April 2000, the premises were leased for use as an Internet café to Mill Inn, Inc. (hereafter Mill Inn). The lease, a standard form multi-tenant lease, was filled out and signed by Linda Kenski as agent for MacMillan. The base rent was $2,500 a month. The lease was for a term of five years, and Mill Inn was granted an option for two 5-year renewal terms. There was one amendment extending the original lease term to May 30, 2006.
The lease provided the renewal options had to be exercised by written notice given at least six months prior to expiration of the original lease term. As relevant here, the lease contained the following provisions concerning the renewal options. Paragraph 39.2 provided renewal options were personal to the original lessee and could not be assigned or exercised by anyone other than the original lessee. Paragraph 12.2 provided the lessor’s consent to an assignment of the lease would not transfer the renewal options “unless such transfer is specifically consented to by [l]essor in writing (See Paragraph 39.2)[.]”
On December 15, 2003, Mill Inn assigned its interest in the lease to Concepcion Munoz. The written assignment was prepared and signed by Linda Kenski as agent for MacMillan. The assignment stated, “Mill Inn... has assigned and conveyed to... Munoz all of its rights, title and interest in and to the [l]ease and in and to the premises that are the subject of the [l]ease[, ]” and “[Mill Inn] hereby sells, assigns and conveys unto [Munoz] all of [Mill Inn’s] rights, title and interest in and to the [l]ease, the [l]easehold [e]state created thereby, and leasehold improvements located thereon.” The assignment also provided that wherever the lease required a notice be served upon any party, the notice had to be in writing “delivered in person or forwarded by certified mail, postage prepaid....”
Kenski Properties did not want to continue with Munoz as a tenant after the original lease term expired on May 30, 2006. On June 1, 2006, Kenski Properties mailed Munoz a 30-day notice of termination of tenancy, signed by its employee Carleen Kezeor, directing Munoz to vacate the premises by July 1, 2006. On June 7, Munoz’s attorney sent a letter to Kenski Properties attaching a copy of a letter dated October 23, 2005, from Munoz addressed to Kenski Properties stating she wanted to exercise her option to renew. The attorney stated Munoz’s letter had been sent to Kenski Properties on October 23, 2005.
On July 6, 2006, the attorneys filed the underlying unlawful detainer action for MacMillan (MacMillan v. Munoz, Orange County Superior Court case No. 06WL03662) based on the 30-day notice. On October 20, 2006, the trial court entered judgment for MacMillan in the unlawful detainer action, after which a writ of possession was issued. Munoz appealed, but apparently she did not seek a stay of the writ of possession. In January 2007, MacMillan recovered possession of the premises and found new tenants.
In January 2008, the Appellate Division of the Orange County Superior Court, in an unpublished decision, reversed the unlawful detainer judgment and remanded with directions to enter a judgment in Munoz’s favor. (MacMillan v. Munoz (Jan. 7, 2008, Super. Ct. of Orange County, App. Div. No. AP 14837.) Apparently, at issue in the unlawful detainer trial was whether the renewal option had been assigned to Munoz and, if so, whether Munoz had timely exercised the option. The appellate division concluded the 30 day notice served on Munoz had been ineffective because her tenancy had not expired. Applying the statutory rule of construction that any ambiguity in whether a transfer of a tenant’s interest in the lease exists must be construed in favor of transferability (Civ. Code, § 1995.220), the appellate division concluded the written assignment encompassed the options because it stated Mill Inn was assigning all of its rights under the lease. The appellate division further observed there was evidence at the unlawful detainer trial that the original lessee had contacted Munoz and reminded her to exercise the renewal option, corroborating that the assignment was intended to include the option terms. The appellate division further concluded Munoz had timely exercised her option to renew the lease term by writing and mailing the October 25, 2005, letter to Kenski Properties. It noted MacMillan had not produced evidence at the unlawful detainer trial to rebut the Evidence Code section 641 presumption that a letter properly addressed and mailed is received. The testimony of Kenski Properties’ employee Kezeor that she had never seen the letter was insufficient evidence it was not received by Kenski Properties in the due course of the mail.
On remand, Kenski Properties did not place Munoz back in possession. The court awarded Munoz approximately $25,000 in costs and attorney fees against MacMillan. Munoz eventually filed a breach of contract action against MacMillan (Munoz v. MacMillan (Super. Ct. Orange County, 2009, No. 30-2009-00122672, hereafter the Munoz breach of contract action), alleging MacMillan breached the lease by evicting her from the premises.
The trial court granted MacMillan’s motion for summary judgment and entered a judgment in his favor in Munoz’s breach of contract action. On our own motion, we take judicial notice of this court’s recent opinion in Munoz v. MacMillan (G043402, May 13, 2011), reversing the judgment for MacMillan.
On December 30, 2008, MacMillan filed the instant action against the attorneys alleging professional negligence arising out of their representation of MacMillan in the unlawful detainer action. In short, he alleged the attorneys failed to properly raise, investigate, and litigate issues concerning assignment and exercise of the renewal options and whether the lease also could have been terminated due to Munoz’s violation of the lease’s use provisions. MacMillan’s complaint contained causes of action for legal malpractice and breach of fiduciary duty.
The complaint also contained causes of action for intentional and negligent infliction of emotional distress, and sought punitive damages. At his deposition, MacMillan testified he had not authorized his current attorneys to include any such causes of action, or to plead punitive damages, and he emphatically stated he waived all such claims. He did not however amend his pleading. In response to the attorneys’ motion for summary judgment, he agreed summary adjudication of those claims was proper.
The Summary Judgment Motion
a. The Attorneys’ Moving Papers
The attorneys’ motion for summary judgment, or in the alternative for summary adjudication, was accompanied by a 69-page separate statement of undisputed facts containing 174 undisputed facts. It was supported by declarations from the defendant attorneys Andrews and Duringer, DLG attorney Eric Bautista and DLG paralegal Cindy Fincher, as well as about 400 pages of documents.
The attorneys asserted the following undisputed facts. DLG handled five to 10 unlawful detainer actions a month for Kenski Properties. The usual practice was for Kenski Properties to send a weekly envelope to DLG containing documents pertaining to unlawful detainer actions it wanted DLG to file. Those actions were virtually always based upon the notice Kenski Properties had already served on the tenant (e.g., 3-day notice to pay rent or quit; 30-day notice to terminate tenancy). The documents would normally include the lease and whatever notice Kenski Properties had already served upon the tenant. Occasionally, if there were “technical errors” in the notice Kenski Properties had served on the tenant, DLG would advise Kenski Properties and Kenski Properties would serve a new notice.
Around June 23, 2006, Kenski Properties asked DLG to begin proceedings to evict Munoz from the premises. Andrews, an associate attorney employed by DLG since August 2004, handled the Munoz unlawful detainer action. Duringer was Andrews’s supervisor, but he had no direct involvement in prosecuting the unlawful detainer action. Kenski Properties sent DLG the lease and the assignment; neither Kenski Properties nor MacMillan had ever sought any legal advice from the attorneys prior to preparing and signing those two documents. Kenski Properties also sent DLG the 30-day notice it had prepared and served on Munoz on June 1, 2006, advising Munoz her tenancy was terminated effective July 1, 2006. Based on those documents, DLG filed the underlying unlawful detainer action. The trial court entered judgment for MacMillan in the unlawful detainer action, and MacMillan recovered possession of the premises.
The attorneys asserted that at the time of the unlawful detainer trial, Kenski Properties had no documentary evidence to show it did not receive Munoz’s October 23, 2005, letter exercising her option to renew the lease and had no evidence regarding the processing of mail in its office. Kenski Properties knew prior to filing the unlawful detainer action that Munoz claimed she timely exercised her option to renew the lease.
Kenski Properties and MacMillan acknowledged Munoz had the option to renew the lease as evidenced by an e-mail Linda Kenski sent to MacMillan after the unlawful detainer action was filed advising him Munoz failed to timely notify them of “‘[her] desire to exercise [her] option to renew the lease.’” In MacMillan’s responses to discovery propounded by Munoz in the unlawful detainer action, Kenski Properties employee Kezeor answered the question asking “whether MacMillan contends that Munoz was never granted an option to... extend the lease... the response was ‘No’.”
The attorneys also asserted undisputed facts concerning the allegation they negligently failed to pursue eviction of Munoz on the theory she was not in compliance with lease conditions, or was committing waste or nuisance on the premises. Kenski Properties never served Munoz with notice that she must comply with conditions in the lease, nor did Kenski Properties have sufficient evidence to give notice terminating the tenancy due to failure to comply with lease terms or waste, between December 1, 2003, and February 1, 2007. On May 22, 2006, Kenski Properties wrote a letter to Munoz about patrons leaving trash around the premises and urinating in common areas. It was the first time such complaints had been raised with Munoz. Munoz denied the allegations. Kenski Properties had no documentary evidence of any alleged nuisance events taking place during Munoz’s occupancy (e.g., photographs, police reports). The only evidence was a declaration from the neighboring tenant who leveled the accusations.
The attorneys asserted MacMillan could not prove causation or damages. In reversing the unlawful detainer judgment, the appellate division found Munoz was assigned the renewal options. That conclusion could have been reached looking solely at the terms of the lease and the assignment, both of which were drafted by Kenski Properties, MacMillan’s agent. The lease assignment unambiguously assigned all interest in the lease to Munoz. Furthermore, prior to filing the unlawful detainer action, Kenski Properties employee Kezeor expressed to Munoz her understanding Munoz had the option to extend. Kezeor wrote a note about a telephone conversation she had with Munoz’s daughter “Gabby” on June 2, 2006 (after the 30-day notice was sent), stating she explained to Gabby that Munoz “‘had option to extend but [she] never exercised option.’ ‘“Can they do it now?”’ ‘No had to be done months ago.’”
b. MacMillan’s Opposition
MacMillan’s opposition to the summary judgment motion included a 100 page separate statement of undisputed facts, supported by a declaration from an attorney testifying as an expert on unlawful detainer actions, Gerald A. Klein, a declaration from Kezeor, and several hundred pages of documents. In the first 85 pages of MacMillan’s separate statement he responded to each of the attorney’s 174 undisputed facts. The last 15 pages, MacMillan set forth his own undisputed facts: 131 of them.
In response to the attorneys’ undisputed facts, MacMillan’s separate statement had two columns. On the left side, MacMillan set out the attorneys’ undisputed fact. On the right side, MacMillan began with an objection, followed by whether he disputed the fact, and his version of the facts. But, rather than cite the evidence supporting his dispute of the attorneys’ facts, MacMillan referred to his own statement of separate undisputed facts, listing the number of his own undisputed fact where the evidence was then referenced. MacMillan conceded summary adjudication of his causes of action for intentional and negligent infliction of emotional distress, and his punitive damage claim was appropriate. He contended, however, there were material issues of fact as to his causes of action for professional negligence and breach of fiduciary duty.
MacMillan’s separate statement set forth the following facts to dispute the attorneys’ facts supported by Kezeor’s declaration. Kezeor was Kenski Properties’ vice president of administration. Kezeor said Kenski Properties had received complaints Munoz’s customers were littering, defecating, and urinating around the buildings and cars, there was gang activity around the premises, and they were making threats to other tenants. On May 22, 2006, Kezeor wrote to Munoz and told her about the problems and warned that allowing the conditions to continue would constitute a breach of the lease.
Kezeor declared that after she served Munoz with the 30-day notice, she received a telephone call from a representative for Munoz asking why the notice had been sent. Kezeor explained the lease term had expired and MacMillan was electing to not continue the tenancy. That afternoon, Kezeor received a faxed letter dated October 23, 2005, saying Munoz was exercising her option to renew. Kezeor said Kenski Properties had not previously received the letter.
Kezeor declared she called DLG and spoke to DLG attorney Andrews before sending DLG any of the documents pertaining to the Munoz eviction because she did not consider this a typical unlawful detainer as “there were issues of potential nuisance” and Munoz’s claim she had exercised the option to renew. Kezeor said she told DLG about the complaints about Munoz’s customers. She faxed DLG the relevant documents including Munoz’s letter dated October 23, 2005, and the letter from Munoz’s attorney. She noted on the fax transmission cover sheet that Kenski Properties had not previously received the October 2005 letter and Kenski Properties wanted Munoz out because of the problems with the bar and its customers.
Kezeor claimed no one from DLG discussed the unlawful detainer complaint with anyone from Kenski Properties before it was filed. Andrews sent Kezeor special interrogatories propounded by Munoz, which Kezeor did her best to answer. As to special interrogatory No. 13, “‘Do [you] contend that when [you] consented to the assignment of [Mill Inn’s] interest in the [lease], [you] did not consent to [Munoz] being assigned an option to extend... [, ]’” Kezeor answered “‘[n]o’” because she thought that was what the question called for. No one from DLG ever discussed her answers to the interrogatories before submitting them to Munoz. Kezeor declared she was “the only witness [Andrews] called to testify on behalf of MacMillan, for purposes other than [establishing] service of the 30-day notice to terminate, ...” and the only preparation she had was a discussion with Andrews in the hallway right before trial. Kezeor declared no evidence was presented at the unlawful detainer trial concerning nuisance on the premises. The attorneys had a declaration from another tenant about the conditions at the premises including that the tenant observed broken beer bottles in the common areas, vandalism, fights, drug use, people urinating and defecating in the parking lot, and people engaging in sex acts in the parking lot and in front of other businesses.
MacMillan submitted a declaration from Klein, a litigation attorney claiming expertise in commercial unlawful detainer actions. Klein opined on the standard of care in a commercial unlawful detainer action. He opined attorney Andrews, a fourth year attorney at the time, lacked the requisite experience to handle the case without supervision from more experienced attorneys in the office. He opined Andrews breached the standard of care by failing to adequately investigate or present evidence concerning Munoz’s exercise of the option to renew the lease because there was no objective proof the letter was mailed in accordance with the terms of the assignment (i.e., by personal delivery or certified mail). Also, Andrews did not present any evidence about Kenski Properties’ internal procedures for handling mail. The attorneys also failed to review discovery responses, in particular Kezeor’s response to special interrogatory No. 13 (i.e., do you contend you did not agree to assign the option to renew) was answered with a simple “no, ” which created a confusing double negative.
c. The Attorneys’ Reply
In reply, the attorneys argued MacMillan’s separate statement was deficient because in responding to their undisputed facts, he failed to reference the specific evidence creating a dispute, instead referring to his own undisputed facts for reference to the evidence. The attorneys objected to Kezeor’s declaration because she lacked personal knowledge about many of the facts she asserted, and they objected to Klein’s declaration on the grounds he lacked qualification as an expert. They asserted MacMillan failed to establish all elements of his remaining causes of action.
d. Ruling
There was no tentative ruling. At the June 2, 2010, hearing on the summary judgment motion, there was only a brief reference to procedural defects in MacMillan’s separate statement made by MacMillan’s attorney who argued the opposition was supported by evidence. He commented, “We cited it [sic] to our separate statement which contained exactly the pieces of evidence and exactly where those pieces of evidence can be found in our opposing papers.” Defense counsel asked the trial court to rule on his evidentiary objections; the court replied “you’ll get my rulings when you get the ruling on the entire motion.”
The trial court subsequently issued its ruling. It ruled MacMillan’s separate statement failed to comply with the requirements of Code of Civil Procedure section 437c and California Rules of Court, rule 3.1350, because it failed to list the evidence supporting the material facts he contended were disputed and instead referred to his own separate statement. “This renders [MacMillan’s] responses to [the attorney’s] separate statement extremely difficult, if not impossible, to decipher.” MacMillan further failed to comply with the format requirements of the court rules (Cal. Rules of Court, rule 3.1354), by including objections within his separate statement, rather than filing a separate document containing evidentiary objections. The court stated that due to the format violations, it was exercising its discretion to grant the summary judgment motion. The court did not rule on any of the evidentiary objections. The minute order did state the attorneys had satisfied their burden of establishing there were no material issues of fact, but it did not specify any reasons for concluding there were no trial issues of fact or refer to any of the attorneys’ proffered evidence. The court subsequently signed an order prepared by the attorneys granting summary judgment that stated in granting summary judgment the court relied on “[the attorneys’] facts numbers 1 to 174, and the cited evidence from [their] separate statement of facts....”
Code of Civil Procedure section 437c, subdivision (g), provides in relevant part, “Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order”.
Motion for Reconsideration /Section 473 Motion
MacMillan filed a motion for reconsideration or for relief under Code of Civil Procedure section 473. With regard to the procedural defects in MacMillan’s separate statement’s response to the attorneys’ undisputed facts, his counsel explained he thought by referring to his own undisputed facts, where the supporting evidence was cited, he was making it easier for the trial court by reducing the length of the opposing statement. He submitted an amended separate statement properly referencing the supporting evidence. The trial court denied the motion. The court’s minute order commented MacMillan had been put on notice of the procedural defects by the attorneys’ opposition but did not attempt to correct the problem.
DISCUSSION
Standard of Review
The rules are well established. A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists only if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).)
A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established, ’ or that ‘there is a complete defense’ thereto. [Citation.]” (Aguilar, supra, 25 Cal.4th at p. 850; Code Civ. Proc., § 437c, subd. (p)(2).) The defendant also “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) Where, as here, the burden of proof at trial is by a preponderance of the evidence, the defendant must “present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not.... ” (Id. at p. 845.) If the defendant carries this burden, the burden of production shifts to the plaintiff “to make a prima facie showing of the existence of a triable issue of material fact.” (Id. at p. 850.) The plaintiff must present evidence that would allow a reasonable trier of fact to find the underlying material fact more likely than not. (Id. at p. 852.)
On appeal we review the record de novo, considering all of the evidence except that to which objections were made and sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Ibid.)
Because the trial court failed to rule on any of the objected to evidence, it is part of the record for purposes of our review. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶¶ 10:301, p. 10-116)
“‘Our review of the summary judgment motion requires that we apply the same three-step process required of the trial court. [Citation.] “First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citations.] [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. [Citations.]... [¶]... [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]” [Citation.]’ [Citation.]” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848.)
However, although we conduct a de novo review, we also must presume the judgment is correct. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1376.) Thus, “[o]n review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. [Citation.]... ‘[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.’” (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) Moreover, “An issue of fact is not created by speculation, conjecture, imagination, or guesswork; it can be created only by a conflict in the evidence submitted to the trial court in support of and in opposition to the motion. [Citation.]” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
Defective Separate Statement of Undisputed Facts
MacMillan primarily assigns error to the trial court’s granting the attorneys’ motion for summary judgment due to the procedural deficiencies in his separate statement. The requirements for a separate statement are set for in Code of Civil Procedure section 437c, subdivision (b), and California Rules of Court, rule 3.1350. In short, the moving party’s separate statement must set out the material facts it contends are undisputed followed by a reference to its supporting evidence (§ 437c, subd. (b)(1)), and the opposing party’s separate statement must respond by indicating whether it agrees or disagrees each fact is undisputed and each disputed material fact must be followed by a reference to the opposing party’s supporting evidence (§ 437c, subd. (b)(3)). The summary judgment statute further provides an opposing party’s failure to comply with the requirements for a separate statement “may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Ibid.)
The California Rules of Court specify the familiar two-column format separate statements must utilize. In the case of the opposing party, the separate statement must “repeat in the first column each material fact claimed by the moving party to be undisputed followed by the evidence advanced by the moving party to establish that fact and then in the second column, directly opposite the recitation of each of the moving party’s undisputed facts, stating whether the fact is ‘disputed’ or ‘undisputed.’ [Rule 3.1350 (f).] In addition, as to those facts that are disputed, the opposing party must state in the second column, ‘directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted. [Rule 3.1350 (f).]” (Parkview Villas Ass’n, Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1209-1210 (Parkview Villas).) The Rules of Court further require that any party’s objections to the evidence submitted by the other party must be “served and filed separately from the other papers in support of or in opposition to the motion.” (Cal. Rules of Court, rule 3.1354 (b).)
MacMillan’s separate statement was defective because in responding to the attorneys’ undisputed facts it failed to list the evidence supporting the material facts he contended were disputed and instead referred to his own undisputed facts where the supporting evidence was cited. He further violated the court rules by failing to file separate evidentiary objections, instead setting them forth in his separate statement.
A trial court decision granting a summary judgment motion due to the opposing party’s failure to comply with the requirements for a separate statement is reviewed for an abuse of discretion. (Parkview Villas, supra, 133 Cal.App.4th at p. 1208.) “Without question, the trial court has every right ‘to refuse to proceed with a summary judgment motion in the absence of an adequate separate statement from the opposing party.’ [Citation.] However, an immediate grant of summary judgment is, in most instances, too harsh a consequence. ‘[T]he proper response in most instances, if the trial court is not prepared to address the merits of the motion in light of the deficient separate statement, is to give the opposing party an opportunity to file a proper separate statement....’ [Citations.]” (Collins v. Hertz Corp (2006) 144 Cal.App.4th 64, 74; see Parkview Villas, supra, 133 Cal.App.4th at p. 1211.)
We agree with MacMillan that granting of the summary judgment motion solely because of the procedural deficiencies in his separate statement—citing to his supporting evidence in the wrong place and failing to separately list his objections to the attorneys’ evidence—was unwarranted. The attorneys’ reliance on this court’s opinions in Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 575 (Oldcastle), and Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902 (Whitehead), is misplaced as both cases considered separate statements that were not simply suffering procedural defects in how the supporting evidence was cited, but that on their face were wholly inadequate from a substantive standpoint.
In Whitehead, supra, 163 Cal.App.4th 896, defendants in opposing plaintiffs’ summary judgment motion did not file a separate statement at all. Rather, defendants filed a two-sentence document titled “‘objection’ to [plaintiffs’] separate statement[, ]” (id. at p. 900), which contained no citation to any evidence, stating simply that they “object[ed] to and contest[ed]” plaintiffs’ separate statement of material facts. (Id. at p. 902.) We concluded the trial court did not abuse its discretion by granting summary judgment due to defendants’ failure to comply with the requirement that a separate statement be filed. (Ibid.)
In Oldcastle, supra, 170 Cal.App.4th 554, plaintiff filed a motion for summary judgment against defendants supported by a separate statement setting forth 46 proposed undisputed material facts. Defendants’ separate statement addressed only four of plaintiff’s proposed undisputed material facts—facts plaintiff asserted in regards to its claim against only one of the defendants—and they did not propose any additional material facts. (Id. at p. 560.) The trial court sustained plaintiff’s objections to defendants’ supporting evidence. (Id. at p. 561.) On appeal, we concluded the trial court had properly sustained plaintiff’s evidentiary objections and defendants’ responsive separate statement failed to demonstrate triable issues of material fact. (Id. at pp. 569-570.) We further held the trial court did not abuse its discretion by denying defendants’ request for a continuance of the hearing on the summary judgment motion so they could revise their responsive separate statement. On its face defendants’ separate statement failed to identify the issues on which they claimed there were material disputed facts, to address all the claims against all defendants, to advance any additional material facts, and was unsupported by any evidence (inasmuch as plaintiff’s objections to their evidence was properly sustained). (Id. at p. 575.) In short, the responsive statement “did not dispute any element of plaintiff’s case against [defendants, ]” defendants failed to set forth evidence to support any affirmative defense they might have, and the trial court was not obligated to give defendants a second shot at preparing a substantively adequate separate statement. (Id. at p. 577.)
Here, unlike Oldcastle and Whitehead, MacMillan filed an extensive separate statement addressing each of the attorneys’ proposed material undisputed facts and proposing extensive undisputed material facts of their own. MacMillan’s separate statement was supported by evidence it was just referred to in the wrong way. The trial court abused its discretion by granting the summary judgment motion solely due to these procedural defects. But MacMillan’s victory is hollow. Given that we conduct a de novo review of the motion, it is still incumbent upon MacMillan to show he carried his burden to demonstrate there were indeed triable issues of fact as to his causes of action. He has failed in this burden.
Legal Malpractice
MacMillan’s complaint contained four causes of action: legal malpractice, breach of fiduciary duty, and intentional and negligent infliction of emotional distress. MacMillan conceded below that summary adjudication was proper on the latter two causes of action. He also conceded his breach of fiduciary duty cause of action was duplicative of his legal malpractice cause of action.
On appeal, legal malpractice is the only cause of action MacMillan discusses. As to that cause of action, MacMillan’s only argument on appeal is the attorneys failed to establish they were entitled to judgment as a matter of law because they failed to present expert opinion evidence concerning the standard of care and whether the standard of care was breached. The argument ignores that the attorneys need only show any element of the cause of action cannot be established. With that in mind we turn to the legal malpractice cause of action and consider whether the attorneys met their burden to demonstrate any necessary element was lacking, and whether MacMillan demonstrated a triable issue of fact as to that element.
The elements of a cause of action for legal malpractice 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. [Citations.]’ [Citation.]” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.)
Because we find it to be dispositive, we turn directly to causation and damages. “‘[A] client claiming that his [or her] attorney was negligent in connection with litigation has the burden of proving that damages resulted, this burden involving, usually, the difficult task of demonstrating that, but for the negligence complained of, the client would have been successful in the prosecution or defense of the action in question.’ [Citation.] ‘Thus the issue of liability includes not only a showing the attorney was negligent but also a showing his [or her] negligence caused damage.’ [Citation.] Essentially, [a client] ha[s] the obligation to ‘retry’ the [underlying] action during the malpractice trial.” (Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 744, fn. omitted.) Causation generally is a question of fact that cannot be resolved on summary judgment unless undisputed facts leave no room for a reasonable difference of opinion. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)
Ultimately at trial, MacMillan would be required to prove to the trier of fact by a preponderance that but for the attorneys’ alleged negligence, he would have prevailed on the appeal of the unlawful detainer judgment he obtained against Munoz. At the heart of his malpractice cause of action are three alleged failings of the attorneys in the underlying unlawful detainer action pertaining to: (1) whether Mills Inn’s assignment of the lease to Munoz included assignment of the option terms; (2) whether Munoz timely exercised the options; and (3) whether Munoz was committing waste or maintaining a nuisance in violation of the use provisions of the lease. The first two issues were apparently tried in the unlawful detainer action; the third was not.
We first consider the effect of the assignment, i.e., whether Munoz had the option to renew the lease term. MacMillan contends the attorneys failed to properly challenge Munoz’s right to exercise the renewal option, but he has failed to demonstrate the existence of any specific evidence the attorneys should have discovered that would have led to a different result (i.e., that would have resulted in the appellate division finding Munoz did not have the right to exercise the renewal options in the lease.) The respondent’s brief prepared by the attorneys in the unlawful detainer appeal argued the lack of a specific writing consenting to the assignment of the options. But in reversing the unlawful detainer judgment, the appellate division of the superior court concluded the option terms had been assigned to Munoz. It relied upon the language of the assignment itself—Mills Inn assigned all of its rights and interests in the lease—corroborated by evidence the prior tenant had reminded Munoz to timely exercise her option, which “demonstrate[d] the parties[‘] intention that the assignment include the option.”
In their summary judgment motion, the attorneys asserted the appellate division gave its legal interpretation to the assignment based on the evidence and MacMillan offers no other evidence that would have resulted in a different interpretation. The attorneys put forth the following undisputed facts: The lease and the assignment were drafted by Kenski Properties and at no time was legal advice sought from them in preparing the lease documents. When the unlawful detainer action was filed, MacMillan, Kenski Properties and Munoz were all operating under the assumption the assignment had included the option terms as evidence by e-mails from Linda Kenski to MacMillan and notes Kezeor wrote of her phone conversation with Munoz all which made reference to Munoz having failed to timely exercise her option to renew (as opposed to her not having the right to exercise the option in the first place).
MacMillan’s separate statement disputed the attorneys’ facts but provided no evidence that actually demonstrated a dispute. Significantly, MacMillan offered no evidence the assignment was not intended (or at least was not understood by MacMillan and his agent who drafted the assignment) to include the options terms. There was no objective evidence that the parties did not intend to allow assignment of the options. MacMillan cited to Kezeor’s declaration in which she stated (exactly as the attorneys had argued in the unlawful detainer action) there was no writing by which MacMillan specifically consented to assignment of the lease’s options. But that was a legal argument about the effect of the evidence available in the unlawful detainer action. It does not demonstrate a factual dispute about the available evidence. MacMillan pointed to an allegedly negligently drafted interrogatory response: Kezeor answered “no” to the Munoz-propounded interrogatory asking “whether MacMillan contends that Munoz was never granted an option to the [sic] extend the lease....” Kezeor declared she gave the answer she thought the question called for and the attorneys never questioned her about her response, but nowhere in her declaration does she state it was not the answer she intended to give. MacMillan’s expert, Klein, declared the answer created a double negative which created confusion and “lead to disaster” on appeal. But the appellate division’s opinion makes no mention whatsoever about the interrogatory response. It is pure speculation that it factored into the result. (Lewis, supra, 93 Cal.App.4th at p. 116 [issue of fact not created by speculation].)
We turn next to MacMillan’s claim the attorneys were negligent in their handling of the issue of the timeliness of Munoz’s exercise of the option to renew by mailing her letter on October 23, 2005. The appellate division concluded MacMillan had not rebutted the presumption a letter properly addressed and mailed is received. (Evid. Code, § 641.) It found Kezeor’s testimony that she had not seen the letter before it was faxed to her in June 2006, was not relevant to the issue of whether it had been received in Kenski Properties’ office, absent evidence as to how mail was handled in the office (i.e., who opened the mail, how was it processed and filed?) MacMillan contends the attorneys were negligent because they failed to present evidence concerning the nonreceipt of Munoz’s letter.
The attorneys set forth as undisputed facts the following: At the time of the unlawful detainer action Kenski Properties had no documentary proof they did not timely receive Munoz’s October 23, 2005, letter; and there was no evidence existing concerning who in Kenski Properties’ offices received and processed incoming mail on or about October 23, 2005, as when asked in discovery to produce any such evidence, MacMillan produced none.
MacMillan disputed the attorneys’ facts based on Kezeor’s declaration stating the attorneys never prepared her to testify on, and presented no evidence in the unlawful detainer trial concerning, Kenski Properties’ mail receipt system. MacMillan also relied upon Klein’s declaration stating the attorneys were negligent in failing to present evidence regarding “the lack of any objective proof of mailing, ” Kenski Properties’ “methodology of handling mail and the absence of any substantial possibility that a letter exercising an option would have been overlooked, ” or the assignment’s requirement that written notices be given by either certified mail or personal service. But missing from both declarations is the evidence MacMillan asserts the attorneys negligently failed to present in the unlawful detainer action. MacMillan’s opposing papers contain no evidence concerning how mail was received in Kenski Properties office. To prove that “but for” the attorneys’ alleged breach of the standard of care the result on the mailing issue would have been different, MacMillan had to have shown there was in fact evidence from which a trier of fact could have found the presumption of mailing was overcome. The court cannot speculate that such evidence existed. Merely losing an argument is not sufficient.
As for Klein’s assertion the attorneys failed to present evidence concerning the assignment’s language requiring all written notices be given by either certified mail or personal service, again what evidence was lacking is not identified. The assignment and the lease were before the trial court and the appellate division in the unlawful detainer action. Klein’s declaration includes as an exhibit MacMillan’s respondents’ brief prepared by the attorneys in which they argued extensively that even if timely, Munoz’s exercise of the option was ineffective absent evidence of service by certified mail or personal service, of which there was none. Klein suggests no additional evidence existed that would have resulted in a different ruling by the appellate division. Again MacMillan’s opposition does not establish causation (i.e., that but for the attorney’s failure to raise lack of delivery by certified mail or personal service, MacMillan would have prevailed on the issue of whether Munoz timely exercised her option to renew).
Ironically, the record from the unlawful detainer action indicates Kenski Properties did not adhere to the certified mail or personal service requirement either—its employee testified the 30-day notice to quit was served on Munoz by posting in regular mail.
Finally, we consider MacMillan’s contention the attorneys failed to adequately investigate and raise as an additional ground for eviction Munoz’s alleged breach of the lease by allowing her customers to engage in acts that constituted nuisance or waste of the premises. The attorneys set forth as undisputed facts that based on MacMillan’s discovery responses in this action he could produce no evidence that his agent, Kenski Properties, had sufficient evidence between December 1, 2003, to February 1, 2007, to justify serving Munoz with a notice to perform conditions or quit possession of the premises under Code of Civil Procedure section 1161, subdivisions (3) and (4). Kenski Properties had no documentary proof of any of the alleged nuisance events; no photographs, videotape recordings, police reports, or invoices concerning the premises pertaining to that time period. Kenski Properties’ May 22, 2006, letter was the first time the issues were raised with Munoz.
MacMillan disputed these facts based on Kezeor’s declaration in which she stated she had received complaints about Munoz’s customers’ behavior and had told the attorneys there were “issues of potential nuisance, ” but they failed to raise nuisance as a grounds for eviction. (MacMillan’s expert, Klein, made no mention of violation of the lease’s use provisions as a grounds for eviction.) MacMillan also referenced a December 2006 declaration the attorneys had obtained from another of MacMillan’s tenants, when opposing Munoz’s request to continue the unlawful detainer trial, in which the tenant told about the obnoxious behavior of Munoz’s customers. But missing from MacMillan’s opposition to the summary judgment motion, and his argument on appeal, is any demonstration that this evidence was sufficient to evict Munoz for violations of the lease. He engages in no discussion of which lease provisions were allegedly violated and no discussion of what the law requires in this regard. In short, he has not demonstrated he in fact had a viable claim for Munoz’s eviction based on violation of the lease’s use provisions, and thus he cannot show any negligence by the attorneys in fact caused damages.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: MOORE, J. FYBEL, J.