Moua v. Pittullo, Howington, Barker, Abernathy, LLP CA2/2 , 228 Cal. App. 4th 107 ( 2014 )

Filed 6/24/14 Moua v. Pittullo, Howington, Barker, Abernathy, LLP CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LILAS MOUA, B251787
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC471183)
v.
PITTULLO, HOWINGTON, BARKER,
ABERNATHY, LLP et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph
R. Kalin, Judge. Affirmed.
OsbornLaw, Richard G. Osborn and Blair J. Berkley for Plaintiff and Appellant.
Nemececk & Cole, Jonathan B. Cole, Claudia L. Stone, and Mark Schaeffer for
Defendants and Respondents.
Lilas Moua (appellant) appeals from a judgment entered after the trial court
granted summary judgment in favor of Pittullo, Howington, Barker, Abernathy, LLP;
P. Timothy Pittullo (Pittullo) and Jonathon A. Zitney (Zitney) (collectively respondents)
on appellant’s claim against respondents for legal malpractice. We affirm.
FACTUAL BACKGROUND
Appellant was born and educated in the United States. She began living with Alex
Ng (Ng) in 1998. Appellant and Ng participated in a traditional Hmong marriage
ceremony in February 2000.1 Ng paid a dowry, and they lived together as husband and
wife. Ng signed numerous formal documents and filed tax returns indicating he was
married. The couple had two children together. Appellant believed she was married to
Ng. Ng informed appellant that he would take care of any papers or documents that were
needed with respect to the marriage. However, no marriage license was ever obtained.
On April 9, 2009, appellant retained respondents to assist her in obtaining a
property settlement and child support from Ng. On April 23, 2009, respondents filed a
petition for dissolution of marriage in the matter captioned Moua v. Ng, San Bernardino
County Superior Court case No. FAMRS 901291 (“family law case”). Pittullo
represented to appellant that there was a 50 percent chance that the family court would
find her to be Ng’s putative spouse.2 Pittullo further represented to appellant that she
could win $1.5 to $2 million if the family court determined that she was Ng’s putative
spouse. Pittullo also advised appellant that if she did not prevail on her putative spouse
1 “The Hmong are an Asian ethnic group from the mountainous regions of China,
Vietnam, Laos, and Thailand.” (.)
2 “‘Under the equitable putative spouse doctrine, a person’s reasonable, good faith
belief that his or her marriage is valid entitles that person to the benefits of marriage,
even if the marriage is not, in fact, valid.’ [Citation.]” (In re Marriage of Tejeda (2009)
179 Cal. App. 4th 973, 980.)
2
claim, she could file a civil action pursuant to Marvin v. Marvin (1976) 18 Cal. 3d 660
(Marvin), along with a paternity action.3
In August 2009, appellant instructed respondents to stop work because she and Ng
were negotiating a settlement. In August and September 2009, respondents
communicated with appellant regarding the status of the settlement negotiations. In late
August 2009, appellant informed respondents that she and Ng had reached a settlement,
which included a one-time payment of $550,000. Ng later offered to enter into a
stipulated judgment in the family law case providing, in part, that Ng would pay the sum
of $550,000 to appellant.
In a letter dated October 30, 2009, Zitney informed appellant that there were
significant risks involved with trying the putative spouse issue, and informed her that if
she were to lose that issue, she could walk away with nothing.
In a letter dated April 27, 2010, Pittullo wrote to appellant informing her of his
“strong” recommendation that she accept Ng’s settlement offer of $550,000. Pittullo
wrote: “Considering that you have a 50% chance of losing and walking away from
$500,000, we have recommended that you accept the offer. However, the final decision
is yours to make.”
Appellant did not accept Ng’s offer. On May 6, 2010, appellant advised
respondents to stop working on the settlement because she was not interested in settling.
On May 14, 2010, Pittullo sent appellant a letter indicating that because appellant
expressly agreed to a judgment in court, and the court asked that such a judgment be
drafted and presented, respondents were still drafting the agreement pursuant to the
court’s directive. Pittullo indicated that the court may have “significant issues” with
appellant’s decision to renege on the agreement.
3 In Marvin, the California Supreme Court held that unmarried adults who live
together are free under general principles of contract law to make agreements concerning
their property and earnings.
3
On May 28, 2010, Ng’s attorney, Howard D. Pilch, faxed respondents the
negotiated attachment to judgment signed by Ng. It provided, in part, for payments
totaling $605,000.
On June 1, 2010, appellant emailed respondents with a request to postpone all
court dates on her case. On June 2, 2010, respondents sent appellant a copy of the
attachment to judgment for her review.
On June 4, 2010, appellant retained Stolar & Associates (Stolar) to represent her in
the family law case. On June 7, 2010, Pittullo received a letter from Evan Bardo of
Stolar indicating that appellant had retained Stolar and enclosing a substitution of
attorney signed by appellant. The same day, Zitney sent an email to appellant’s new
counsel with the attachment to judgment signed by Ng. On June 10, 2010, Pittullo sent
Stolar the signed substitution of attorney, which was filed with the court that day.
Appellant did not enter a settlement agreement while represented by respondents.
On June 18, 2010, Steven L. Finston of Stolar wrote appellant a letter advising her
to accept the $605,000 settlement offer. Finston indicated his opinion that appellant’s
chances of winning the putative spouse issue were “far lower” than 50/50. Appellant did
not accept the offer. Instead she offered to settle for $750,000. Ng declined.4
Ultimately, Ng’s motion to dismiss the family law case was granted on the ground that
appellant was not a putative spouse, and appellant received nothing from Ng.
PROCEDURAL HISTORY
Appellant filed the present legal malpractice lawsuit against respondents and
Stolar, among others, on October 7, 2011. Appellant’s fourth amended complaint was
filed October 15, 2012. It alleged one cause of action against respondents for legal
malpractice.
On November 5, 2012, respondents filed their motion for summary judgment. In
it, they argued that there was no proximate causal connection between the alleged breach
4 Appellant’s counsel insisted at oral argument that it was Ng who made the
$750,000 offer. On the contrary, the record reveals that it was appellant who made the
offer, which Ng declined.
4
and appellant’s injury due to the fact that appellant’s case was taken over by new
attorneys prior to the conclusion of the matter. Further, respondents argued that
appellant’s claim was barred by the one-year statute of limitations found in Code of Civil
Procedure section 340.6.
The motion was heard on August 15, 2013, and the matter was taken under
submission. On August 20, 2013, the trial court issued an order granting the motion. The
court explained its conclusion that “[t]here are no triable issues of material fact to show
any causation of alleged damages caused by [respondents’] conduct. [Respondents]
recommended that [appellant] accept the settlement offers.” Judgment in favor of
respondents was entered on September 13, 2013.
On October 2, 2013, appellant filed her notice of appeal.
DISCUSSION
I. Standard of review
The standard of review for an order granting or denying a motion for summary
judgment or adjudication is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th
826, 860 (Aguilar).) The trial court’s stated reasons for granting summary relief 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.)
A party moving for summary judgment “bears the burden of persuasion that there
is no triable issue of material fact and that he is entitled to judgment as a matter of law.”
(Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) “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.” (Ibid., fn. omitted.) “A defendant 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.]” (Ibid.)
Generally, “the party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact; if he carries his burden of production, he causes a shift, and the opposing
5
party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact. . . . A prima facie showing is
one that is sufficient to support the position of the party in question. [Citation.]”
(Aguilar, supra, 25 Cal.4th at pp. 850-851, fn. omitted.)
II. Elements of legal malpractice cause of action
“In a legal malpractice action arising from a civil proceeding, the elements are (1)
the duty of the attorney to use such skill, prudence, and diligence 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
damage resulting from the attorney’s negligence. [Citations.]” (Coscia v. McKenna &
Cuneo (2001) 25 Cal. 4th 1194, 1199.) Significantly, “‘[i]f the allegedly negligent
conduct does not cause damage, it generates no cause of action in tort. [Citation.] . . .’
[Citation.]” (Baltins v. James (1995) 36 Cal. App. 4th 1193, 1202.)5
In the present matter, appellant argues that respondents’ representation that there
was a 50 percent chance that the family court would find her to be the putative spouse of
Ng caused her to decline Ng’s settlement offers of $550,000 and $605,000. Appellant
asserts that she was damaged when the family law matter was dismissed and she
recovered nothing.
5 Reasonable reliance is not an element of the tort of legal malpractice, therefore we
decline to address in detail appellant’s discussion of this concept. However, we note that
appellant attempts to argue that it is never possible to conclude that a plaintiff’s reliance
on a representation was unreasonable without stepping into the role of the trier of fact and
weighing the evidence. This position is incorrect. Appellant cites only one case, which
is not controlling authority: Hoyt Props. v. Production Res. Group, L.L.C. (Minn. 2007)
736 N.W.2d 313, 321. Appellant completely ignores the substantial body of California
law on the topic of reasonable reliance. In California, the question of “whether a party’s
reliance was justified may be decided as a matter of law if reasonable minds can come to
only one conclusion based on the facts. [Citation.]” (Guido v. Koopman (1991) 1
Cal. App. 4th 837, 843; see also Kruse v. Bank of America (1988) 202 Cal. App. 3d 38, 54
[“‘If the conduct of the plaintiff in the light of his own intelligence and information was
manifestly unreasonable, . . . he will be denied a recovery’”].)
6
III. Respondents’ burden: the nonexistence of a triable issue of material fact
In their motion for summary judgment, respondents argued that there was no
triable issue of material fact as to proximate causation. “[T]he question of proximate
cause . . . becomes one of law where the facts are uncontroverted and only one deduction
or inference may reasonably be drawn therefrom. [Citations.]” (Whinery v. Southern
Pac. Co. (1970) 6 Cal. App. 3d 126, 128.)
Respondents point out that they recommended to appellant that she settle the case,
advised her that there was significant risk in trying her case, and warned her that she
could walk away with nothing if she lost the putative spouse issue. Respondents
negotiated a stipulated judgment providing that Ng would pay appellant $605,000, which
Ng signed. Respondents urged appellant to accept the settlement. Shortly thereafter,
appellant retained new counsel, who also recommended that appellant accept the
$605,000 offer. In spite of both counsels’ recommendations, appellant rejected the
settlement. Based on these undisputed facts, respondents take the position that it was
appellant’s own actions, in rejecting her attorneys’ advice, which was the direct cause of
her damage.
In addition, respondents argue that appellant’s retention of subsequent counsel
(Stolar), who independently advised appellant about Ng’s offer of $605,000, broke the
causal chain between respondents and appellant. In support of this argument,
respondents cite several cases. The first, Steketee v. Lintz, Williams & Rothberg (1985)
38 Cal. 3d 46 (Steketee), involved a plaintiff who claimed that the defendant law firm and
two of its members negligently failed to file an action for medical malpractice on
plaintiff’s behalf within the limitations period. (Id. at p. 50.) However, the attorney-
client relationship between plaintiff and defendants was terminated in January 1979, and
the plaintiff’s cause of action for medical malpractice did not expire until September
1979. (Id. at p. 57.) The Supreme Court concluded, “An attorney cannot be held liable
for failing to file an action prior to the expiration of the statute of limitations if he ceased
to represent the client and was replaced by other counsel before the statute ran on the
client’s action. [Citations.]” (Ibid.; see also Stuart v. Superior Court (1992) 14
7
Cal. App. 4th 124, 127 [attorney “entitled to summary judgment because he was not the
attorney of record for [plaintiff] at the time his former client is alleged to have lost the
right to pursue the personal injury action”].) Similarly, respondents argue, an attorney
cannot be held liable for a client’s failure to accept a settlement when the attorney ceases
to represent the client and is replaced by other counsel while the settlement offer is still
open.
Respondents also rely upon Filbin v. Fitzgerald (2012) 211 Cal. App. 4th 154
(Filbin). Filbin is a “settle and sue” case, “which involves a former client suing after
litigation has been settled. Depending on whether the disgruntled client was the plaintiff
or the defendant in the antecedent lawsuit, the basis of the claim is that the settlement was
less than it should have been, or more than it had to be, by reason of the negligence of the
party’s attorney.” (Id. at p. 157.) In Filbin, the trial court awarded former clients more
than half a million dollars for malpractice by their former attorney. The Court of Appeal
reversed, “concluding that as a matter of law there [was] no causal connection between
the attorney’s assertedly negligent acts and omissions and the amount the clients received
when they settled.” (Ibid.)
The matter involved an eminent domain proceeding initiated by San Luis Obispo
County against the Filbins. An appraiser hired by Fitzgerald, the Filbins’s attorney,
appraised the property at $4,535,000. However, Mr. Filbin, a former real estate broker,
believed the property was worth between $12 million and $15 million. (Filbin, supra,
211 Cal.App.4th at p. 159.) Fitzgerald advised the Filbins that they were required to
make a final settlement offer under the mandatory settlement provisions found in Code of
Civil Procedure section 1250.410. He also informed them that the law generally requires
that the property owner make a settlement demand in a figure less than the appraisal
opinion. (Id. at pp. 159-160.) This statement was incorrect, as no authority requires such
a reduced demand. (Id. at p. 168.)
However, the Court of Appeal pointed out that “attorney breaches of the standard
of care are not per se actionable. [Citations.]” (Filbin, supra, 211 Cal.App.4th at pp.
169-170.) The court concluded that “nothing Fitzgerald did, or did not do, up to the time
8
he departed as the Filbins’ counsel caused the Filbins to do anything to their detriment.”
(Id. at p. 170.) Indeed, the trial court noted, the Filbins refused to follow his advice and
refused to lower their demand to the amount stated by the appraiser. (Ibid.) Thereafter,
they acquired new counsel, and it was with that new attorney’s impartial advice that they
proceeded. The court concluded, “Their decision to settle was theirs and theirs alone,
made with the assistance of new counsel, with no input from Fitzgerald. The
consequences of that decision are likewise theirs alone.” (Id. at p. 171.)
Similarly, respondents argue, appellant refused to follow their advice and accept
Ng’s settlement offer. Thereafter, appellant acquired new counsel, and it was with her
new counsel’s impartial advice that she proceeded. Appellant’s ultimate decision not to
settle, in spite of her attorneys’ advice that she do so, was hers alone, and the
consequences of that decision are likewise hers alone.6
We find that the cases cited by respondents support their position that there is no
triable issue of material fact as to causation. Appellant disregarded respondents’ advice
to accept the initial settlement offer from Ng. Appellant retained new counsel while Ng’s
offer of $605,000 was still pending. Appellant’s new counsel also strongly encouraged
her to accept the settlement. It was her own decision, against the advice of her attorneys,
to decline. No causal connection exists between any alleged malpractice and appellant’s
loss as a matter of law.
6 Appellant attempts to distinguish Filbin on the ground that it was a “settle and
sue” case. Here, appellant argues, there was no settlement. Appellant is suing because
she declined Ng’s settlement offers to her substantial detriment. We find this factual
distinction to be insignificant under the circumstances. Appellant is complaining of
essentially the same thing: she got less than what she could have.
Appellant also attempts to distinguish Filbin because the Filbins rejected
Fitzgerald’s advice. Appellant insists: “Obviously, after the Filbins rejected Fitzgerald’s
advice and hired new counsel, there could be no reliance on Fitzgerald or causation.”
However, the facts here show that appellant did exactly the same thing: she rejected
respondents’ advice to accept Ng’s settlement offer, then hired new counsel. Following
appellant’s own logic, there can be no reliance or causation under these facts.
9
IV. Appellant has failed to show the existence of a triable issue of material fact as to
proximate cause
Because respondents have met their burden of production, there is a shift, and
appellant is subjected to a burden of production of her own to make a prima facie
showing of the existence of a triable issue of material fact as to the element of causation.
(Aguilar, supra, 25 Cal.4th at pp. 850-851.) As set forth below, we find that appellant
has failed to meet this burden.
Appellant states that, in reliance on respondents’ negligent representation that
there was a 50 percent chance the family court would find her to be Ng’s putative spouse
and award her $1.5 to $2 million, she declined to accept Ng’s settlement offers.
Appellant insists that if respondents had advised her that there was less than a 50 percent
chance that she would be declared Ng’s putative spouse, she would have accepted Ng’s
settlement offers. In other words, appellant claims, but for respondents’ negligence, she
would have obtained a greater reward.7
Appellant argues that the trial court failed to credit her declaration, which states
“In reliance on [respondents’] representation that there was a 50-percent chance that the
family court would find me to be Ng’s putative spouse and award me $1.5 to $2.0
million, I declined to sign the Attachment to Judgment (Family Law) that Ng signed on
May 28, 2010, that provided for a payment of $605,000 to me.” Appellant argues that it
is axiomatic that a trial court may not weigh the evidence on summary judgment, thus it
was improper for the trial court to reject this evidence in her declaration.
Appellant’s insistence that she relied on respondents’ representation that she had a
50 percent chance of winning is insufficient to create a triable issue of fact as to legal
causation. “[A]n issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory
assertions.’ [Citation.]” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal. App. 3d 190,
7 Appellant’s reliance on Charnay v. Cobert (2006) 145 Cal. App. 4th 170 regarding
the concept of but-for causation is misplaced. Charnay addresses the sufficiency of legal
malpractice allegations on demurrer. Here, the question is whether appellant can
establish causation as a matter of law on the undisputed facts of this case.
10
196.) A 50 percent chance is just that: you might win, you might lose. Respondents did
not encourage appellant to gamble on this 50/50 chance. On the contrary, the undisputed
facts show that respondents strongly encouraged appellant to accept Ng’s settlement
offer. Appellant does not deny that respondents encouraged her to accept the settlement.
The undisputed evidence shows that she simply ignored this advice. Appellant was not
relying on her attorneys’ advice in rejecting the settlement, as her attorneys’ advice was
to accept the settlement. Appellant’s conclusory assertion to the contrary does not create
a triable issue of fact.8
Appellant also disputes respondents’ position that her replacement of respondents
with new counsel broke the chain of causation, based on language in Cline v. Watkins
(1977) 66 Cal. App. 3d 174 (Cline). Cline was a legal malpractice case which stemmed
from a divorce proceeding. Watkins, Cline’s former attorney, filed a divorce action on
January 21, 1969, claiming several items as community property. Cline’s former
husband stated that he was receiving $376.15 per month in “Air Force retirement pay.”
However, Cline’s community interest in the retirement pay was not asserted in the
dissolution action. (Id. at p. 177.)
On May 13, 1969, a substitution of attorney was filed relieving Watkins of
representation of Cline. A week later, an attorney named Scott was substituted as
counsel. (Cline, supra, 66 Cal.App.3d at p. 177.) When Cline filed a malpractice action
against both attorneys for their failure to assert her community property interest in the
retirement money, Watkins demurred on the ground that there was no causal connection
8 Appellant cites law suggesting that it is improper for a court to resolve issues of
credibility on summary judgment. (AARTS Productions, Inc. v. Crocker National Bank
(1986) 179 Cal. App. 3d 1061, 1065 [“A court generally cannot resolve questions about a
declarant’s credibility in a summary judgment proceeding”].) In determining that
appellant’s declaration does not create a triable issue of material fact, we need not make
any credibility determinations nor weigh any evidence. Instead, we are making a
judgment regarding legal proximate causation based on undisputed evidence.
Appellant’s alleged reliance on a single statement that gave her only a 50 percent chance
of winning was not the legal cause of her failure to obtain a settlement. The legal cause
of her failure to obtain a settlement was her own decision to reject two separate attorneys’
recommendations that she accept the settlement.
11
between his negligence and Cline’s damage because he was relieved before judgment
was entered and subsequent counsel could have cured the error.
The trial court sustained Watkins’ demurrer, but the Court of Appeal reversed.
The question addressed was “whether the negligence of Scott disclosed by the file in the
dissolution action to have occurred after that of Watson is a superseding cause which as a
matter of law excuses the latter from liability. [Citation.]” (Cline, supra, 66 Cal.App.3d
at p. 178.) Thus, both attorneys were alleged to have committed the same negligence:
failing to secure Cline’s community property interest in her former husband’s retirement
fund. The question was whether the second attorney’s negligence superseded Watkins’
negligence. Finding the question to be one of foreseeability, the Court of Appeal
determined that a factual issue existed.
Appellant has not raised an issue here regarding superseding negligence. She
specifically asserts that it was respondents who put her chances of winning at 50/50;
appellant’s subsequent counsel put her chances “far lower.” Nor do respondents argue
that the negligence of Stolar was a superseding cause of appellant’s damage. Instead,
respondents argue that Stolar, operating independently and within the standard of care,
advised appellant that her chances of winning the putative spouse issue were not good
and encouraged her to take Ng’s settlement. In other words, subsequent counsel did
attempt to prevent any harm that may have been caused by respondents’ alleged
overestimation of success on the putative spouse issue. Appellant chose to ignore this
good advice. It was that choice which was the proximate cause of her damage. Because
we are not addressing an issue of superseding negligence, Cline, and the lengthy
foreseeability discussion therein, are inapplicable.9
9 The Restatement Second of Torts section 452, discussed in Cline, is captioned
“Third Person’s Failure to Prevent Harm.” (Rest.2d Torts, § 452.) The restatement is
plainly inapplicable to the facts before us. It covers a situation in which “after the
original actor has been negligent and so has created an unreasonable risk of harm to
another, a third person has the opportunity, by taking affirmative action, to avert the
threatened harm. This implies that if such action were taken, it would prevent the
negligence of the original actor from causing the harm which has in fact resulted.”
12
In sum, appellant has failed to show the existence of a triable issue of material fact
as to causation under the undisputed facts of this case.
V. Statute of limitations issue
Respondents have raised a second ground for summary judgment. They argue that
the malpractice action against them is barred by the one-year statute of limitations found
in Code of Civil Procedure section 340.6. The parties raise various conflicting arguments
about when exactly appellant’s cause of action accrued.
Because we have determined that appellant cannot show the existence of a triable
issue of material fact regarding the element of proximate cause, we decline to address the
statute of limitations issue. (Benach v. County of Los Angeles (2007) 149 Cal. App. 4th
836, 845, fn. 5 [“appellate courts will not address issues whose resolution is unnecessary
to disposition of the appeal”].)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.*
FERNS
(Rest.2d Torts, § 452, Com. a.) Again, neither party here is suggesting that Stolar failed
to prevent appellant’s harm. The undisputed facts show that Stolar -- like respondents --
made every effort to prevent harm to appellant by encouraging her to take the settlement.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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