Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Benito County Super. Ct. No. CU0500179
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Respondent Patrick Marshall, an attorney, defended appellant Willie Riley in an unlawful detainer action that included a dispute over Riley’s ownership of the house from which he was being evicted by his former girlfriend, Deborah McDonald. McDonald held title to the house on which Riley had paid the down payment and some mortgage payments. Shortly before the trial of the unlawful detainer action was to begin, Riley signed a settlement agreement resolving the unlawful detainer action and the home ownership dispute. After Riley failed to make the payments to McDonald that were required by the settlement agreement, Riley lost his claimed ownership interest in the house during further legal proceedings.
Riley then brought the instant legal malpractice action against Marshall, alleging that Marshall had negligently advised him to sign a settlement agreement with a forfeiture provision that would cause him to lose his interest in the house if he did not perform under the terms of the agreement. Riley also alleged that Marshall had abandoned him without taking steps to protect his interests. The trial court granted Marshall’s summary judgment motion, finding as a matter of law on the element of causation that it was Riley’s failure to make the required payments that caused his loss, and not any action taken by Marshall during his representation of Riley.
On appeal, Riley argues that his evidence established Marshall’s professional negligence and the trial court erred in its ruling on causation. For reasons that we will explain, we determine that triable questions of material fact exist and therefore we will reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Actions
Riley, an insurance broker, had both a business and romantic relationship with McDonald. In February 2002, Riley and McDonald entered into a verbal agreement regarding the purchase of a house on Merrill Road in San Juan Bautista. The agreement provided that McDonald would obtain a mortgage and purchase the property, while Riley would provide the down payment and pay the monthly mortgage payments, taxes, and insurance.
McDonald purchased the Merrill Road house after she obtained a mortgage in the amount of $520,152 and Riley made a down payment of approximately $25,000. The grant deed indicating that McDonald was the title holder for the property was recorded on March 14, 2002. Riley and McDonald lived in the house after the purchase and Riley paid the monthly mortgage payments until October 1, 2003. After October 1, 2003, McDonald paid the monthly mortgage payments, taxes and insurance.
A number of disputes arose between Riley and McDonald regarding the Merrill Road house and McDonald eventually filed an unlawful detainer action against Riley in San Benito County Superior Court. (McDonald v. Riley, case No. CL030404 (hereafter, McDonald v. Riley.) Riley retained Marshall to defend him in the unlawful detainer action and executed an “attorney-client retainer agreement” on December 15, 2003. Marshall also represented Riley in the action that Riley brought against McDonald for breach of contract, declaratory relief, constructive trust, quiet title, and breach of confidential relationship (Riley v. McDonald (Super.Ct. San Benito County, No. CU0300156 (hereafter, Riley v. McDonald).
Trial on the unlawful detainer action was set on April 2, 2004. Shortly before the trial was to begin, Riley signed a settlement agreement and the unlawful detainer action was taken off calendar. The terms of the settlement agreement provided, among other things, that Riley would make certain payments to McDonald, including funds to cover the property taxes and to reimburse her for mortgage and other payments she had made, and to pay the monthly mortgage payments from May 2004 forward. Riley also agreed to “open an escrow at a title company . . . for the purpose of RILEY obtaining a new loan against the property, paying off the current real estate loan in MCDONALD’S name, and completing his purchase of the real property from MCDONALD.” Additionally, Riley agreed to pay McDonald $55,000 to reimburse her for earlier loans made to Riley and his share of their living and household expenses, as well as partial reimbursement of her attorney fees and costs.
The settlement agreement also provided that, in the event Riley defaulted on any of the payments required by the agreement, or failed to complete the purchase of the property prior to June 30, 2004, McDonald would have the right to file the stipulation for entry of judgment in the unlawful detainer action that both parties had signed concurrently with the settlement agreement. The stipulation for entry of judgment provided that Riley would pay McDonald $28,063.30 plus damages at the rate of $141.75 for each day Riley remained in possession of the premises between February 1, 2004, and the date possession was given to McDonald.
A few days after the settlement agreement was executed, Marshall sent Riley a letter dated April 6, 2004, enclosing copies of the executed settlement agreement and the stipulated judgment, as well as his attorney fees bill. On June 11, 2004, Marshall sent Riley another letter, in which he requested payment of unpaid attorney fees and stated, “I no longer desire to represent you in either of the two cases filed with the court, including the action entitled Riley v. McDonald. The unlawful detainer action case (McDonald v. Riley) is concluded by way of settlement and stipulated judgment, so I am not obligated to perform any further work on that case.” Marshall also enclosed a substitution of attorneys form that he asked Riley to sign and return, and informed Riley that if he did not return the substitution of attorney form, Marshall would bring a motion to be relieved as his attorney. On June 23, 2004, Marshall filed a motion to be relieved as counsel in the quiet title action, Riley v. McDonald, on the ground of nonpayment of attorney fees. The trial court granted the motion on July 13, 2004.
According to the trial court’s summary judgment order of October 3, 2007, the court also granted Marshall’s motion to be relieved as counsel on July 15, 2004. We assume that this motion was made in the unlawful detainer action, McDonald v. Riley. The record on appeal does not contain either that motion or the July 13, 2004 order.
In the meantime, Riley failed to make all of the payments required by the settlement agreement. At McDonald’s request, the stipulation for entry of judgment was filed on June 21, 2004. Judgment was entered on June 24, 2004 in McDonald v. Riley, the unlawful detainer action. The judgment provided that McDonald would recover possession of the Merrill Road premises; that Riley would be evicted; and Riley would pay McDonald $42,014.02 in damages. However, Riley obtained new counsel and the judgment was set aside on March 2, 2005. The March 2, 2005 order also provided that McDonald would retain possession of the premises.
Thereafter, on April 27, 2005, while Riley was represented by new counsel, the trial court entered partial judgment in the quiet title action, Riley v. McDonald. Pursuant to the terms of the settlement agreement, the partial judgment provided that all causes of action in which Riley sought “possession and/or title” to the Merrill Road property were dismissed with prejudice and Riley was “adjudged to have no further right, title, or interest, legal or equitable,” in the property.
Riley’s appeal in Riley v. McDonald is currently pending in this court (Riley v. McDonald, H032566). We granted Riley’s request for judicial notice of several trial court records in Riley v. McDonald, including the April 27, 2005 order granting partial judgment. (Evid. Code, § 452, subd. (d).)
B. The Legal Malpractice Action
1. The Complaint
Riley filed a legal malpractice action against Marshall on June 23, 2005. Riley alleged in his complaint that Marshall had been retained to protect Riley’s interest in the Merrill Road house, by defending McDonald’s unlawful detainer action and by filing the quiet title action against her.
The action was transferred from Santa Clara County Superior Court to San Benito County Superior Court on September 21, 2005.
The complaint included one cause of action for professional negligence, based on the following allegations: Marshall “failed to exercise reasonable care and skill in undertaking to perform legal services for Plaintiff, and negligently and carelessly advised Plaintiff to sign a one-sided agreement under which a mere delay in performance would cause Plaintiff [to] forfeit his entire interest in his home. Such negligence has damaged Plaintiff by causing him to lose his home, in which he had invested over $100,000 by June 2004, and in which he had equity of over $200,000 by June 2004. MARSHALL further negligently and carelessly abandoned his client in June or July 2004, without taking steps to assure the protection of his client’s interests.”
The complaint further stated that Riley sought compensatory damages of not less than $300,000. Marshall answered the complaint and also filed a cross-complaint seeking payment of unpaid attorney fees.
2. The Motion for Summary Judgment
Marshall filed a summary judgment motion on March 23, 2007. He argued that Riley could not prove the element of causation in his cause of action for professional negligence; that the undisputed facts showed that he did not abandon Riley; and Riley’s claim was time-barred under Code of Civil Procedure section 340.6.
Regarding the element of causation, Marshall argued that Riley could not prove this element because the evidence showed that Riley had signed the settlement agreement voluntarily due to assurances from McDonald that, despite the “time lines” included in the settlement agreement, she would “ ‘never take your home.’ ” According to Marshall, Riley had admitted that he entered into the settlement agreement voluntarily based on McDonald’s assurances, as stated in his declaration filed on March 4, 2005, in the related quiet title action, Riley v. McDonald. Marshall also asserted that it was undisputed that Riley had failed to make all of the payments due to McDonald under the terms of the settlement agreement.
Marshall further argued that Riley could not prove the causation element because the evidence showed that he had signed the settlement agreement to avoid losing his house. Also, Marshall asserted that Riley’s declaration in the related quiet title action, Riley v. McDonald, stated that Riley would have been able make the required payments under the settlement agreement but for McDonald’s theft of $37,000 from Riley and her “holdup of insurance contracts that would have netted [him] $30,000 in additional income.”
As to Riley’s claim that Marshall had abandoned him, Marshall argued that Riley could not prove abandonment because it was undisputed that Marshall sent Riley a letter on June 11, 2004, stating that “he would no longer represent plaintiff in the now-settled litigation, and enclos[ing] Judicial Council form substitutions of attorney for plaintiff to sign and send back to defendant.” It was also undisputed, according to Marshall, that he “formally substituted out in the underlying actions by filing Noticed Motions for Withdraw of Attorney, which motions were granted.”
Marshall additionally argued that the action filed on June 23, 2005, was time-barred under Code of Civil Procedure section 340.6, the one-year limitations period provided for legal malpractice actions, because the limitations period began to run no later than June 11, 2004, the date of Marshall’s letter to Riley stating that he would no longer represent him.
3. Opposition to the Summary Judgment Motion
In his opposition to the motion for summary judgment, Riley agreed that it was undisputed that he failed to timely perform under the terms of the settlement agreement. However, he argued that triable questions of material fact existed as to causation, abandonment, and the statute of limitations, and therefore summary judgment could not be granted.
As to the causation element, Riley asserted that the evidence showed that Marshall had coerced him into signing the settlement agreement. According to Riley, he told Marshal that he could not perform under the settlement agreement within the time limits set by McDonald because his cash flow was erratic, and for that reason he did not sign the settlement agreement before April 2, 2004, the date of the unlawful detainer trial. Riley also recalled that when he met Marshall at his office one-half hour before trial was to begin, he still did not want to sign the settlement agreement. However, Marshall told Riley a few minutes before trial that if he did not immediately sign the settlement agreement, Marshall would not represent him at the trial and Riley’s home would be lost at trial. Before signing the settlement agreement, Riley responded, “ ‘I’m screwed . . . I have no choice. I’ve got to sign the settlement agreement. I will not lose my house.’ ” Thus, Riley argued that “Marshall’s threat was the immediate cause of Riley’s decision to sign.”
Regarding abandonment, Riley contended that Marshall had abandoned him without taking steps to protect his interest. Specifically, Marshall did nothing when McDonald served him with her declaration for entry of the stipulated judgment in the unlawful detainer action, McDonald v. Riley, on June 21, 2004, although the judgment was fatally defective because it exceeded the $25,000 limit for a limited jurisdiction case and McDonald had failed to give the required five-day notice. Riley asserted that Marshall could have easily prevented the entry of the $42,000 judgment and Riley would not have incurred $10,000 in legal fees after retaining a new attorney to set aside the judgment.
Marshall’s statute of limitations argument also lacked merit, according to Riley, because his complaint was timely filed on June 23, 2005, within the one-year limitations period set forth in Code of Civil Procedure section 340.6. Riley argued that the one-year statute of limitations did not begin to run until Marshall’s representation of Riley ceased on July 16, 2004, “when the order permitting his withdrawal became effective.”
4. The Trial Court’s Order
On October 3, 2007, the trial court issued its order granting Marshall’s motion for summary judgment. The order stated that, in addition to considering all of the documents filed in connection with the motion and the argument of counsel, the court had reviewed “the entire original court file as to all proceedings of the court and documents filed herein by the parties in the consolidated underlying actions entitled McDonald v. Riley, [case] No. CL-03-0404 (unlawful detainer) and Riley v. McDonald, [case] No. CU-03-00156 [quiet title] and ha[d] taken judicial notice of the relevant records contained therein.”
The record reflects that the June 29, 2007 hearing on the motion for summary judgment was not reported.
The trial court determined from its review that there were no disputed material facts requiring a trial, based on the court’s finding that the following facts were undisputed: (1) “[Riley] by his own admission, failed to make all payments required of him under the terms of the April 2, 2004 Settlement and Real Property Purchase Agreement in order to maintain possession and perfect the purchase of the subject real property from McDonald”; (2) “It is [Riley’s] failure to make all payments required of him under the agreement that resulted in his loss of the real property to McDonald”; (3) “There is no factual nexus between [Riley’s] loss of the real property and any action taken on his behalf by [Marshall] during [Marshall’s] legal representation of [Riley] in either of the underlying actions”; “[Marshall’s] representation of [Riley] ended by court orders on July 13, and July 15, 2004, respectively”; and (4) “[Marshall], a licensed California attorney, did not abandon, or otherwise cause any legal injury to [Riley], his former client during the course of his representation of [Riley] as noted herein.”
Accordingly, the trial court granted Marshall’s motion for summary judgment on October 3, 2007. Riley filed a motion for new trial on October 15, 2007, which the trial court denied. Judgment in Marshall’s favor was entered on December 31, 2007. Marshall also dismissed his cross-complaint with prejudice on October 4, 2007.
Riley filed a timely notice of appeal from the summary judgment on January 10, 2008.
III. DISCUSSION
Riley contends in his opening brief that the trial court erred in granting the motion for summary judgment because he had “proved the elements of his case for negligence and attorney misconduct.” Our evaluation of his claim of trial court error is governed by the applicable standard of review.
A. The Standard of Review
The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th 826, 860 (Aguilar.) The trial court’s stated reasons for granting summary judgment are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In performing our independent review, we apply the same three-step process as the trial court. “Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.)
“We then examine the moving party’s motion, including the evidence offered in support of the motion.” (Baptist v. Robinson, supra, 143 Cal.App.4th at p. 159.) A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.)
If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
In determining whether the parties have met their respective burdens, the court must “ ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th. at p. 843.) “There is a triable issue of material fact if, and 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.” (Id. at p. 850, fn. omitted.) Thus, a party “cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)
B. The Statute of Limitations Defense
At the outset, we consider Marshall’s potentially dispositive argument in his motion for summary judgment that there is a complete defense to the legal malpractice action, because the action is time-barred under the one-year limitations period for legal malpractice actions provided by Code of Civil Procedure section 340.6.
1. Code of Civil Procedure section 340.6
In pertinent part, Code of Civil Procedure section 340.6, subdivision (a) provides, “(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.”
Code of Civil Procedure section 340.6 also includes a tolling provision, which states in part that “[i]n no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that . . . [¶] . . . [¶] (2) [t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred[.]” (Code Civ. Proc., § 340.6, subd. (a)(2).)
2. The Parties’ Contentions
Marshall argued in his summary judgment motion that the legal malpractice complaint was untimely filed under Code of Civil Procedure section 340.6 on June 23, 2005, more than one year after the June 11, 2004, letter that Marshall sent to Riley stating that he would no longer represent him. Riley argues on appeal that the trial court properly rejected the statute of limitations defense, based on the court’s finding that Marshall continued to represent Riley until the orders of July 13, 2004, and July 15, 2004, granted Marshall’s motions to be relieved as counsel in both McDonald v. Riley and Riley v. McDonald.
In making these arguments, the parties implicitly agree that the one-year limitations period began to run more than one year before the legal malpractice complaint was filed on June 23, 2005, but that Marshall continued to represent Riley after the date of the alleged wrongful act or omission and therefore the limitations period was tolled. The parties disagree as to the length of the tolling period, however. Marshall asserts that the tolling period ceased when his representation of Riley ceased on June 11, 2004, the date of his letter to Riley stating that he would no longer represent him. Riley, on the other hand, asserts that Marshall continued to represent him until the trial court granted his motions to be relieved as counsel in July 2004.
3. Continuous Representation
Thus, the issue on appeal is whether Marshall established as a matter of law that his representation of Riley ceased more than one year before Riley filed his legal malpractice complaint. To resolve this issue, we turn to the well established standard for determining an attorney’s continuous representation of a client within the meaning of the Code of Civil Procedure section 340.6.
“The purpose of this ‘continuous representation’ rule, the Supreme Court observed in Laird v. Blacker (1992) 2 Cal.4th 606, is to ‘ “avoid the disruption of an attorney-client relationship by a lawsuit while enabling the attorney to correct or minimize an apparent error, and to prevent an attorney from defeating a malpractice cause of action by continuing to represent the client until the statutory period has ended.” ’ [Citations.]” (Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1498 (Worthington.)
Code of Civil Procedure section 340.6 does not expressly define continuous representation. In Worthington, supra, 29 Cal.App.4th 1488, this court determined that “ ‘[o]rdinarily, an attorney’s representation is not complete until the agreed tasks or events have occurred, the client consents to termination or a court grants an application by counsel for withdrawal.’ [Citation]. ‘The rule is that, for purposes of the statute of limitations, the attorney’s representation is concluded when the parties so agree, and that result does not depend upon formal termination, such as withdrawing as counsel of record.’ [Citations.]” (Id. at p. 1497.) We further determined in Worthington that the standard for determining when an attorney’s representation has ended is an objective standard. (Ibid.)
Where there is a claim that the attorney abandoned a client, however, “the crucial inquiry” is “ ‘when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. [Citation.]’ [Citation.]” (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1050.)
4. Triable Questions of Fact Exist
In the present case, the evidence shows that Marshall sent Riley a letter dated June 11, 2004, in which he stated, “I no longer desire to represent you in either of the two cases filed with the court, including the action entitled Riley v. McDonald. The unlawful detainer action case (McDonald v. Riley) is concluded by way of settlement and stipulated judgment, so I am not obligated to perform any further work on that case.” Marshall also enclosed a substitution of attorneys form and warned that he would bring a motion to be relieved as counsel if Riley did not execute the substitution of attorneys form.
Applying the objective standard for determining when an attorney’s representation has ended, we find that the June 11, 2004 letter did not unequivocally advise Riley that Marshall’s representation of him had ended. Riley could have reasonably expected that Marshall’s representation would continue until Riley executed the substitution of attorneys form or a court order allowed Marshall to withdraw.
Additionally, the evidence shows that, despite his June 11, 2004 letter, Marshall filed a case management conference statement on behalf of Riley in Riley v. McDonald on July 6, 2004. On page two, the case management conference statement indicated that “Plaintiff’s attorney, Patrick E. Marshall is seeking to withdraw from the case.” Based on the case management conference statement, we find that Riley could have reasonably expected that Marshall was continuing to represent him until the court granted his motion to be relieved as counsel.
Therefore, the evidence reflects that a triable question of fact exists as to whether Marshall’s representation of Riley ceased on June 11, 2004, when he sent Riley the letter advising that he no longer wished to represent him, or in July 2004, when the trial court granted Marshall’s motions to be relieved as counsel. For that reason, Marshall failed to establish as a matter of law that the legal malpractice action was time-barred under Code of Civil Procedure section 340.6.
C. The Cause of Action for Legal Malpractice
We next consider whether, as Riley argued below, summary judgment is precluded because triable questions of fact exist as to one or more of the elements of the cause of action for legal malpractice.
The California Supreme Court has stated the elements of a cause of action for legal malpractice. “In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of an attorney to use such skill, prudence, as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damages resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199; Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.)
To obtain summary judgment in the instant legal malpractice action, Marshall had the burden of showing that the cause of action for professional negligence lacked merit because one or more elements of the cause of action could not be established or there was a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, 25 Cal.4th at p. 850.) Marshall essentially argued in his motion below that the cause of action for professional negligence lacked merit because Riley could not establish the elements of breach of duty and causation.
D. Breach of Duty
Riley alleges that Marshall breached his duty of care by coercing him into signing an unfavorable settlement agreement and then abandoning him in June 2004. In his summary judgment motion, Marshall conceded that, if proven, coercing a client to sign a settlement agreement by threatening to not represent the client at trial would constitute a breach of duty for which he could have been “disbarred, or sitting out a lengthy suspension from practice.” However, Marshall argued that the evidence showed as a matter of law that he did not abandon Riley, because he sent Riley a letter on June 11, 2004, stating that he would no longer represent Riley and enclosing substitution of attorney forms, and the trial court granted his motions to be relieved as counsel.
To determine whether Marshall met his burden on summary judgment to show as a matter of law that he did not breach his duty to Riley, we first examine the applicable standard of care. “The standard of care in attorney malpractice is clear. . . the crucial inquiry is whether their advice and actions were so legally deficient when given that it demonstrates a failure to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in performing the tasks they undertake. [Citations.]” (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1237.) Whether an attorney has breached his or duty of care by “failing to conform to the standard of care is a matter of law only if reasonable minds cannot differ on whether the conduct does or does not satisfy the standard of care. In all other cases the question will be treated as a question of fact, as it is in any other negligence action.” (Id. at pp. 1237-1238.)
We find that reasonable minds can differ as to whether Marshall abandoned Riley. As we have discussed, the letter of June 11, 2004, did not unequivocally advise Riley that Marshall had ceased representing him, and Marshall thereafter filed a case management conference statement in Riley v. McDonald on July 6, 2004. Moreover, Riley presented evidence in opposition to the summary judgment motion to show that Marshall did nothing to protect Riley’s interests when McDonald served Marshall with her declaration for entry of the stipulated judgment in the unlawful detainer action, McDonald v. Riley, on June 21, 2004, and thereafter judgment was entered against Riley.
For these reasons, we determine that the evidence regarding Marshall’s alleged breach of duty shows that triable questions of fact exist regarding that element of the cause of action for legal malpractice.
E. Causation
On appeal, Riley contends that the trial court erred in implicitly finding, even assuming that Marshall was negligent, that Riley’s failure to make the payments required by the settlement agreement was an intervening or superseding cause of his damages. Riley insists that his damages were caused because “Marshall negligently and (and oppressively) pushed his client, Riley, into signing an agreement that Riley did not want to sign and that Marshall knew Riley could not perform. Riley’s inability to make all the payments under the agreement does not relieve Marshall of his liability to his client.”
Marshall responds that Riley’s alleged loss of his interest in the Merrill Road house was caused, not by “any negligent advice” from Marshall, but either by Riley’s failure to comply with the terms of the settlement agreement or by interference from McDonald.
The California Supreme Court has described the element of causation as follows: “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. The purpose of this requirement . . . is to safeguard against speculative and conjectural claims. [Citation.]” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)
“Like breach of duty, causation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion. [Citations.]” (Kurinj v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.) Thus, “ ‘[t]he question about what would have happened had [the lawyer] acted otherwise is one of fact unless reasonable minds could not differ as to the legal effect of the evidence presented. [Citation.]’ [Citation.]” (Ibid.; Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531-1532.)
We determine that triable questions of fact exist as to the element of causation. Marshall’s evidence, as set forth in his separate statement of undisputed facts in support of the summary judgment motion, was that Riley had stated in a declaration filed on March 4, 2005, in the related quiet title action, Riley v. McDonald, that he “ ‘would not have signed that agreement’ but for Ms. McDonald’s assurances” that the timelines in the settlement agreement were not important and she would “ ‘never take your home’.”
In opposition to the motion for summary judgment, Riley stated in his supporting declaration filed on June 15, 2007, that he had remained unwilling to sign the settlement agreement, due to his inability to make the required payments by the deadlines imposed in the agreement, even after McDonald had assured him that she would never take his home. Riley further stated that he had signed the settlement agreement on April 2, 2004, because Marshall coerced him into signing by threatening that Marshall would not represent him at the imminent unlawful detainer trial and as a result Riley would lose his home. Riley also pointed out that Marshall acknowledged in his March 23, 2007 declaration that Riley had stated, just before signing, that “ ‘I’ve got no choice. I have got to sign the settlement agreement. I will not lose my house.’ ”
Based on this evidence, we believe that triable questions of material fact exist as to the element of causation. Reasonable minds could differ regarding whether Riley could have obtained a more favorable judgment or settlement but for Marshall allegedly coercing Riley into signing the April 2, 2004, settlement agreement that contained terms that Riley could not perform.
We acknowledge Marshall’s argument, made in his reply to Riley’s opposition to the summary judgment motion, that the court should ignore Riley’s evidence regarding Marshall’s coercion because the evidence is contradicted by Riley’s March 4, 2005 declaration in the quiet title action. As we have noted, Riley stated in his March 4, 2005 declaration that he “would not have signed this agreement unless Ms. McDonald had assured me that the deadlines in the agreement were not important and that she would not take my house.” Marshall’s argument relies on the decision in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, in which the California Supreme Court established the rule that “a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.)
The rule in D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1 does not apply in the present case because Marshall asserts that in the legal malpractice action Riley contradicted the position stated in his declaration filed in the related quiet title action, not in his prior discovery responses. However, the doctrine of judicial estoppel is potentially applicable. Judicial estoppel is “ ‘ “sometimes referred to as the doctrine of preclusion of inconsistent positions,” ’ ” because it “ ‘ “prevents a party from ‘asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding . . . .” ’ ” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169.)
“The doctrine of judicial estoppel applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citation.] ‘ “The gravamen of judicial estoppel is . . . the intentional assertion of an inconsistent position that perverts the judicial machinery.” ’ [Citation.]” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 85-86.) In other words, “ ‘ “[i]t seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite.” ’ ” (See M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 463.)
Thus, we understand Marshall to have argued below that Riley should be judicially estopped from asserting in the legal malpractice action that Marshall coerced him into signing the April 2, 2004 settlement agreement, because Riley made the contradictory statement in his prior declaration, filed in the quiet title action, that he signed the settlement agreement due to McDonald’s assurances that she would not take his house if he missed the payment deadlines imposed by the agreement.
We are not convinced by this argument because we do not find the two positions to be totally inconsistent. Riley may have been motivated to sign the settlement agreement both by McDonald’s assurances and by Marshall’s alleged coercion, and we cannot determine as a matter of law on the record before us which factor was the substantial factor in his decision to sign. (See Mungo v. Taylor (7th Cir. 2004) 355 F.3d 969, 981-982 [plaintiff’s earlier testimony that she signed settlement agreement voluntarily not clearly inconsistent with legal malpractice claim that defendant attorney pressured her to sign]; Wolfe v. Wolf (Ill. Ct. App. 2007) 874 N.E.2d 582, 586 [same].)
For these reasons, we determine that triable questions of material fact exist as to the elements of breach of duty and causation in the legal malpractice cause of action and therefore the motion for summary judgment should have been denied. Having also concluded that a triable question of fact exists as to the statute of limitations defense, we need not address the other issues the parties have raised on appeal.
IV. DISPOSITION
The judgment is reversed. Costs on appeal are awarded to appellant.
WE CONCUR: MIHARA, J., Duffy, J.