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Mirmehdi v. Ross

California Court of Appeals, Second District, Fourth Division
Sep 16, 2008
No. B200480 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court for Los Angeles County No. BC349146, Joanne O’Donnell, Judge.

Law Offices of George Baltaxe and George Baltaxe for Plaintiffs and Appellants.

Law Offices of Lloyd Kirschbaum and Lloyd Kirschbaum for Defendants and Respondents.


WILLHITE, J.

Plaintiffs Mostafa Mirmehdi, Mojtaba Mirmehdi, Mohsen Mirmehdi, and Mohammad Reza Mirmehdi (the Mirmehdis) appeal from a summary judgment in favor of defendants David L. Ross, Ross, Rose & Hammill, LLP, Amy Fitch, Melanie Meie Yang, and Sara Moosavi (the Attorneys) in their legal malpractice action. The trial court found that, although there was a triable issue as to whether the Attorneys breached their duty of care, the Mirmehdis failed to raise a triable issue as to causation, and therefore the Attorneys were entitled to judgment as a matter of law. We affirm the judgment.

BACKGROUND

The Mirmehdis came to the United States from Iran in the early 1990s. They were arrested by the Immigration and Naturalization Service (INS) twice. When they were first arrested in March 1999, they posted bond and were released. The INS rearrested them shortly after September 11, 2001, and began removal proceedings, charging that the Mirmehdis were removable because they were aliens in the United States in violation of the law (8 U.S.C. § 1227(a)(1)(B)).

On March 1, 2003, the INS transitioned into the Department of Homeland Security as the United States Citizenship and Immigration Services.

Although the Mirmehdis conceded they were in the United States in violation of the law, they applied for withholding of removal (8 U.S.C. § 1231(b)(3)(A)) on the ground that their lives or their freedom would be threatened if they were removed to Iran. They also sought to be released on bond pending the removal proceedings.

In accordance with federal regulations, the proceeding on the request for release on bond was separate from the proceedings on removal. (8 C.F.R. § 1003.19(d).) The immigration judge in the bond case denied the Mirmehdis’ request. On June 13, 2002, the BIA affirmed the immigration judge’s ruling, finding that the Mirmehdis were subject to mandatory detention because of their association with a terrorist organization.

In the meantime, in the removal proceedings before different immigration judges, the INS argued that the Mirmehdis were ineligible for withholding of removal because there were reasonable grounds to believe they were a danger to the security of the United States. (8 U.S.C. § 1231(b)(3)(B)(iv).) In April 2002 and August 2002, the immigration judges presiding over the removal proceedings issued decisions granting the Mirmehdis’ applications for withholding of removal, finding by a preponderance of the evidence that there were not reasonable grounds to believe the Mirmehdis are a danger to the security of the United States.

The INS appealed the withholding of removal decisions to the BIA, while the Mirmehdis remained in custody. The Mirmehdis hired the defendant Attorneys in July 2003 to, among other things, file a bond redetermination motion in light of the withholding of removal decisions. The Attorneys filed the motion, which was heard by the same immigration judge who denied their earlier request for release on bond. After the motion was denied, defendant Amy Fitch wrote a letter to the Mirmehdis to inform them of the denial. In the letter, sent on November 11, 2003, Fitch stated, “We believe we filed a strong motion and thus will have a strong case on appeal. [¶] We will be filing an appeal with the Board of Immigration Appeals within the week.” Despite this statement, however, the Attorneys did not file an appeal with the BIA.

In August 2004, the BIA affirmed the immigration judges’ decisions in the removal proceedings, finding there was insufficient evidence that the Mirmehdis were associated with a terrorist organization or engaged in terrorist activities. The Mirmehdis finally were released from custody in March 2005.

In March 2006, the Mirmehdis filed the instant action against the Attorneys. In the operative complaint, they allege claims for legal malpractice and breach of fiduciary duty based upon the Attorneys’ failure to file a timely appeal from the bond redetermination hearing.

Although the complaint also alleges that the Attorneys committed legal malpractice and breached their fiduciary duty by failing to file for a writ of mandamus, they expressly abandoned that claim in their opposition to the Attorneys’ summary judgment motion.

The Attorneys moved for summary judgment, on the ground that nothing the Attorneys did or failed to do caused the Mirmehdis to spend more time in custody. Therefore, the Attorneys contended the Mirmehdis could not establish that the Attorneys’ conduct caused the Mirmehdis any damage.

In support of their motion, the Attorneys submitted the declarations of defendant David L. Ross and of Philip Joel Karlan. Ross stated that the Attorneys decided that an appeal from the denial of the bond redetermination motion would be “of no value since the decision making process was essentially political (anything seen as terrorist was to be refused) and getting the BIA to overturn the [immigration judge] was highly unlikely both because of politics and because the law gives great and virtually unassailable deference to the [immigration judge] in these matters.” In his declaration, Karlan set forth his credentials as an expert in immigration matters, listed the documents he reviewed, and opined that the Attorneys met the standard of care and competency as practiced in the community with regard to not filing an appeal from the denial of the bond redetermination motion. He stated that “Bond redetermination motions are fact based and [immigration judges] are given great latitude in assigning the weight accorded to each fact, rarely being overturned administratively. Additionally, the political climate and the allegations made concerning membership in the MEK [an alleged terrorist organization] and terrorism activities are issues best left to the courts[,] not administrative bodies that are only quasi-independent and beholden to the Attorney General’s discretion and policies[,] which in this case ha[ve] been consistently tough on these type[s] of matters.” He concluded that “nothing [the Attorneys] did or allegedly failed to do had the [e]ffect of lengthening the incarceration of the [Mirmehdis].”

The Mirmehdis did not oppose the summary judgment motion as to two of the defendants, but opposed it as to the remaining defendants. Pointing to the letter defendant Fitch wrote to them after the immigration judge denied their bond redetermination motion, the Mirmehdis argued there was a material issue of fact regarding whether the Attorneys’ failure to file the appeal to the BIA was negligent, rather than a strategic decision. They also submitted the declaration of Helen Sklar, a certified specialist in immigration law, who stated, “I believe that if an appeal had been timely filed the plaintiffs would probably have been granted bond in view of the two prior decisions finding that the plaintiffs were not members of a terrorist organization, were not terrorists and were not barred from deportation [sic]. Under the circumstances, there was no longer any reason for the plaintiffs to be held without bond.”

The Attorneys objected to Sklar’s declaration, and in particular to her opinion regarding the probable success of an appeal from the denial of the bond redetermination motion. They argued that Sklar was not competent to offer her opinion on that issue because she did not read the entire file in the immigration matter or the motion for bond redetermination, and she did not establish that she had any experience in cases similar to the Mirmehdis’ case.

The trial court sustained the Attorneys’ objection and granted their motion for summary judgment. The court found there was a triable issue as to whether the Attorneys breached their duty of care, but that the Mirmehdis failed to raise a triable issue as to causation. The court explained that the Attorneys had presented evidence that the appeal was not likely to be successful given the allegations of terrorism and the standard of review, and that, in light of the sustained objection to Sklar’s declaration, the Mirmehdis presented no evidence to dispute that fact. The court entered judgment in favor of the Attorneys, from which the Mirmehdis appeal.

The court also noted that even if it were to consider Sklar’s declaration, the result would be the same. The court explained that Sklar only stated her belief that the appeal would have been successful because the Mirmehdis ultimately prevailed in their removal action, but “[t]he fact that plaintiffs were ultimately found not to be terrorists and ultimately released from custody sheds no light on whether they were entitled to be free pending that final outcome, which was the issue addressed in the bond redetermination hearing.”

DISCUSSION

On appeal, the Mirmehdis argue they are not required to show, at the summary judgment stage, that the appeal to the BIA would have been successful, but that in any event, Sklar’s declaration raised a triable issue of fact as to the probable success of an appeal. They are incorrect.

If a defendant moving for summary judgment presents evidence that one or more elements of the plaintiff’s claim cannot be established, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The plaintiff shows that a triable issue of material fact exists by pointing to evidence that would allow a reasonable trier of fact to find that fact in favor of the plaintiff. (Ibid.) If the plaintiff fails to do so, the defendant is entitled to judgment as a matter of law.

In this case, the Mirmehdis alleged a claim for legal malpractice. The elements of a legal malpractice claim are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) In moving for summary judgment, the Attorneys presented evidence that the conduct alleged as legal malpractice -- their failure to file an appeal to the BIA from the immigration judge’s denial of their bond redetermination motion -- did not cause the Mirmehdis damage because the appeal would not have succeeded. Thus, the Attorneys met their burden to show that an essential element of the Mirmehdis’ legal malpractice claim could not be established. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [“In a litigation malpractice action, the plaintiff must establish 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”].)

Although the operative complaint also alleges a claim for breach of fiduciary duty, the Mirmehdis have abandoned that claim on appeal. Indeed, the opening line of their opening brief states, “This is an attorney malpractice case.”

The burden then shifted to the Mirmehdis to present evidence to raise a triable issue as to causation. In other words, they needed to present evidence that would allow a reasonable trier of fact to find that but for the Attorneys’ failure to file an appeal with the BIA, they would have been released on bond. They contend they did so, in the form of Sklar’s declaration. But the trial court sustained the Attorneys’ objection to Sklar’s statement that the appeal would have been successful and the Mirmehdis would have been released on bond, and the Mirmehdis do not challenge that ruling in this court. Therefore, we do not consider that evidence in reviewing the trial court’s grant of summary judgment. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1113-1114 [on review of summary judgment, appellate court does not consider evidence to which objections were made and sustained, where appellant does not challenge trial court’s evidentiary ruling on appeal].)

Without Sklar’s expert opinion, there was no evidence presented by the Mirmehdis to dispute the Attorneys’ evidence that they would not have prevailed on appeal to the BIA. Thus, the trial court properly granted summary judgment in favor of the Attorneys.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

We concur: EPSTEIN, P. J., MANELLA, J.


Summaries of

Mirmehdi v. Ross

California Court of Appeals, Second District, Fourth Division
Sep 16, 2008
No. B200480 (Cal. Ct. App. Sep. 16, 2008)
Case details for

Mirmehdi v. Ross

Case Details

Full title:MOSTAFA MIRMEHDI, et al., Plaintiffs and Appellants, v. DAVID L. ROSS, et…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Sep 16, 2008

Citations

No. B200480 (Cal. Ct. App. Sep. 16, 2008)