Case Number: BC471183 Hearing Date: April 08, 2014 Dept: 34

Moving Party: Defendants Steven R. Stolar and Stolar & Associates APLC (“Stolar”)

Resp. Party: Plaintiff Lilas Moua (“plaintiff”)

Stolar’s request for summary adjudication is DENIED.

Plaintiff’s Objections to Stolar’s Exhibits:

Objection
1 SUSTAINED
2 SUSTAINED
3 SUSTAINED
4 SUSTAINED
5 SUSTAINED
6 SUSTAINED
7 SUSTAINED
8 SUSTAINED
9 SUSTAINED
10 SUSTAINED
11 SUSTAINED
12 SUSTAINED
13 SUSTAINED
14 SUSTAINED
15 SUSTAINED
16 SUSTAINED

The Court sustains plaintiff’s objections to Stolar’s exhibits 2, 6, 7, 8, 9, 11, 15, 17, 18, 19, 20, 23, 28, 32, 32A, and 36 because Stolar fails to authenticate these exhibits. (See Evid. Code, §§ 1400, 1401; Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523.)

In fact, Stolar fails to authenticate most of the exhibits submitted with the motion and reply. Stolar fails to provide an authenticating declaration (i.e., one stating that the exhibits are true and correct copies) or any other authenticating evidence for all but the following exhibits: 1, 10, 21, 22, 29, 30, 31, 33, 34, and 35 (filed with the motion), and 237 (filed with the reply). With the reply papers, Stolar fails to address the authentication issue raised by plaintiff in her objections, makes no attempt to authenticate the exhibits with a supplemental declaration or other evidence, and, indeed – with the exception of Exh. 237 – submits additional exhibits without authentication. The Court disregards all of the unauthenticated exhibits filed with Stolar’s motion and reply. The Court will only consider exhibits 1, 10, 21, 22, 29, 30, 31, 33, 34, and 35 (filed with the motion), and 237 (filed with the reply).

Objection
1 OVERRULED
2 OVERRULED
3 OVERRULED
4 OVERRULED
5 OVERRULED
6 OVERRULED
7 OVERRULED
8 SUSTAINED
9 SUSTAINED
10 OVERRULED
11 OVERRULED
12 OVERRULED
13 OVERRULED
14 OVERRULED
15 SUSTAINED
16 OVERRULED
17 OVERRULED
18 OVERRULED
19 OVERRULED
20 OVERRULED
21 OVERRULED
22 OVERRULED
23 OVERRULED
24 OVERRULED
25 OVERRULED
26 OVERRULED
27 SUSTAINED
28 OVERRULED

The Court sustains Stolar’s objections to the following portions of the Moua declaration: paragraphs 29 (hearsay), 32 (hearsay), 43 (lack of foundation), and 57 (improper legal conclusion). The Court overrules the remainder of Stolar’s objections.

(Stolar did not number his objections [the Court had to number Stolar’s objections for purposes of the above table], and there are no tabs for separating Exhs. 237-269 and 270-272 that were filed with the Reply. Stolar’s failure to comply with the California Rules of Court simply makes it harder for the Court to analyze the Motion. Similarly, it would behoove Stolar to more carefully proof-read his submissions:
for instance, the two volumes of exhibits submitted with its Motion are mistitled; Stolar’s Reply quotes from an “Exhibit 300″ (Reply, p. 6:13-14) – but there is no Exh. 300 filed as part of this Motion.)

BACKGROUND:

Plaintiff commenced this action on October 7, 2011, against various defendants alleging six causes of action: (1) attorney malpractice; (2) attorney malpractice; (3) attorney malpractice; (4) attorney malpractice; (5) breach of trust; and (6) negligence. Plaintiff filed a second amended complaint on June 22, 2012, after the Court granted defendants’ motion to strike. Plaintiff’s second amended complaint added two causes of action for breach of fiduciary duty and fraud; however, the Court had not granted plaintiff leave to amend to add causes of action. After obtaining leave to amend, plaintiff filed a third amended complaint alleging the same causes of action alleged in the second amended complaint.

After the Court sustained defendants’ demurrer to the third amended complaint, plaintiff filed a fourth amended complaint (“4AC”) on October 15, 2012. The 4AC included causes of action for: (1) attorney malpractice; (2) attorney malpractice; (3) attorney malpractice; (4) breach of trust; (5) breach of fiduciary duty; (6) fraud; and (7) negligence. The second cause of action is the only cause of action asserted against Stolar.

The underlying action in this case was a family law case involving a controversy over property acquired during a cohabitation period between Plaintiff and one Alex Ng. (4AC ¶ 24.) Stolar was retained by plaintiff after the Pittullo defendants and before the Hagan defendants. (See id., ¶ 31.) Plaintiff alleges that Stolar executed a notice of withdrawal of a lis pendens on disputed property in the family law action. (See id., ¶¶ 44-45.) Upon receipt of these notices, the Pilch defendants caused the notices of withdrawal to be recorded. (Id., ¶ 47.) Plaintiff also alleges that, contrary to plaintiff’s instructions, Stolar negotiated and proposed changes to a settlement and stipulated judgment despite plaintiff’s instructions to expedite the settlement. (Id., ¶¶ 49-53.) Plaintiff alleges that this resulted in a failure to reach a settlement. (Id., ¶¶ 54-55.) Plaintiff also alleges that Stolar failed to adequately advise her in the family law action. (See id., ¶ 57.)

On 8/20/13, the Court granted a motion for summary judgment by the Pittullo defendants.

On 11/12/13, the Court denied a motion for summary judgment by the Hagan defendants.

ANALYSIS:
Stolar moves for summary judgment/adjudication of the second cause of action on the ground that plaintiff cannot establish that Stolar’s conduct caused her damages. The second cause of action contains four categories of alleged malpractice: (1) Stolar failed to properly advise and represent plaintiff regarding cohabitation agreements and a possible Marvin action, or other tort actions, within the applicable statute of limitations; (2) Stolar improperly executed notices of withdrawal of lis pendens, which caused them to be recorded; (3) Stolar improperly negotiated settlements, allowing them to be withdrawn; and (4) Stolar “improvidently” withdrew from the representation of plaintiff. (See 4AC ¶ 57.)

Stolar’s motion challenges – as it must – all of these four primary assertions. In order for the court to grant Stolar’s motion for summary adjudication, he would have to successfully challenge all four of these assertions. (Code Civ. Proc., § 437c(f)(1).) As indicated below, Stolar challenge fails – at least for purposes of this summary adjudication motion – as to the first three of these four theories of alleged malpractice.

“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.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

1. Allegations regarding a possible Marvin action

Stolar argues that these claims fail because Stolar did advise plaintiff of the possibility of a Marvin action and because the statute of limitations on the Marvin action had not run when plaintiff fired Stolar.

Plaintiff retained Stolar on June 4, 2010, in relation to her dissolution action against Alex Ng (“Ng”). (DMF 1.) It is undisputed that when plaintiff filed the action, she believed she was married to Ng; however, no valid marriage license had ever been obtained. (DMF 6-8.) Stolar’s associate, Steven Finston, advised plaintiff in a letter that he believed plaintiff’s odds of prevailing were “far lower” than 50/50. (DMF 13.) He stated that, regardless of the odds, he did not believe it was worth the risk. (Ibid.) Finston explained that plaintiff could recover nothing, and discussed the possible merits of the case. (Ibid.) He explicitly recommended that plaintiff accept the $605,000.00 settlement offer. (DMF 15.) The letter also discussed the viability of a possible Marvin action. (See Def. Exh. 10.) Stolar declares that plaintiff at no point directed the Stolar defendants to file a Marvin action. (Stolar Decl., ¶ 4.)

Plaintiff presents evidence showing that she did not pursue a Marvin claim at that time because Stolar advised against it, suggested that the statute of limitations had run, and expressed that no Marvin action could be filed until the dissolution action concluded. (See PMF 16.) This evidence is sufficient to raise a triable issue of fact as to whether Stolar adequately advised plaintiff as to a possible Marvin action.

For the argument regarding the statute of limitations, Stolar primarily relies on the California Supreme Court case Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46. In Steketee, the plaintiff (Steketee) alleged that the defendant law firm and its attorneys (Lintz) negligently failed to file an action for medical malpractice within the statute of limitations provided in Code of Civil Procedure section 340.5. (Id. at p. 50.) Lintz argued that the applicable statute of limitations ran several months after their representation of Steketee ended, and thus they no longer had a duty to file an action on Steketee’s behalf. (Id. at p. 51.) The court first interpreted section 340.5 and concluded that it “must be construed to permit a person subjected as a minor to the professional negligence of a health care provider a period of at least three years from the date of the wrongful act in which to file an action, regardless of when the age of majority is reached or the injury is discovered.” (Id. at p. 57.)

Having determined that this three-year statute of limitations applied, the court moved on to address whether the statute of limitations had run while Steketee was represented by Lintz. The court found that the statute of limitations did not run until September 1979, and that the attorney-client relationship between Steketee and Lintz terminated in January 1979. (Steketee, 38 Cal.3d at p. 57.) The court noted that Steketee’s only cause of action alleged that Lintz committed legal malpractice by failing to file the medical malpractice action within the period of the statute of limitations. (Ibid.) The court noted, without analysis, that: “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.” (Ibid.) The court therefore affirmed the summary judgment in favor of Lintz.

The court in Steketee relied on Shelly v. Hansen (1966) 244 Cal.App.2d 210 [disapproved of on other grounds by Neel v. Magana, Olney, Levy, Cathcart & Celfand (1971) 98 Cal.3d 176] in reaching the conclusion that Lintz could not be held liable for failing to file the action where he was no longer representing Steketee when the statute ran. In Shelly, the court recognized that in order to “warrant recovery for this type of negligence plaintiff must first plead and prove that at the critical times in question there existed the relationship of attorney and client with its accompanying responsibilities.” (Shelly, 244 Cal.App.2d 210, 214.) In that action, the defendant had been replaced by another attorney seven months before the statute of limitations ran. (Ibid.) The court recognized that the subsequent employment of other counsel intervened to disrupt the causal connection. (Ibid.)

In Cline v. Watkins (1977) 66 Cal.App.3d 174, the court addressed the issue of “whether substitution of new counsel who negligently fails to cure the results of negligence of prior counsel in representation of his client in pending litigation relieves the first attorney of liability.” (Id. at p. 176.) In Cline, the plaintiff alleged that the defendant represented her in a dissolution action and negligently failed to include plaintiff’s community interest in her ex-husband’s military pension. (Id. at p. 177.) Defendant was substituted out of the action prior to the entry of a judgment which did not reference her community interest in the pension. (Ibid.) The trial court sustained the defendant’s demurrer on the basis that, because he was substituted out prior to the order, his negligence could not have caused the damages as a matter of law. (Id. at pp. 177-178.)

The appellate court addressed whether the negligence of the subsequent counsel was a superseding cause that as a matter of law excused the defendant from liability. (Cline, 66 Cal.App.3d at p. 178.) The court noted:

In general, if the risk of injury is reasonably foreseeable, the defendant is liable. An independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable. [Citation.] Reasonable foreseeability in this context is a question for the trier of fact. The declaration of rules restricting the actor’s responsibility for his negligence is a question of law. [Citation.]

Restatement Second of Torts section 452 (approved by the Court of Appeal in Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 635-636 [128 Cal.Rptr. 807]) states: “(1) Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm. [¶] (2) Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.”

By reason of subsection (1) of section 452, the originally negligent actor generally remains liable although a third person negligently fails to discharge a duty to take affirmative action which would have prevented the harm if the third person’s conduct is reasonably foreseeable. [Citation.] Subsection (2) of Restatement Second of Torts section 452 applies only in exceptional circumstances to relieve the original actor of the foreseeable consequences of his act. In those exceptional circumstances, the duty and hence entire responsibility is shifted from the original actor to the third person. [Citation.] In some circumstances, responsibility may be shifted by agreement between the actor and the third person. [Citation.] In the absence of agreement, “the circumstances may be such that the court will find that all duty and responsibility for the prevention of the harm has passed to the third person.” [Citation.]

(Id. at pp. 178-179.) The court found that the case before it was governed by subsection (1) of Restatement section 452, and not subsection (2). (Id. at p. 180.) Thus, the issue of causation depended on a factual determination of foreseeability and could not be determined as a matter of law on demurrer. (Ibid.)

The court in Steketee did not provide an analysis to support the conclusion that an attorney could not be liable for failure to file an action with the statute of limitations where the attorney was replaced by other counsel prior to the running of the statute, and did not address the issue of whether the negligence of the subsequent counsel was a superseding cause. (See Steketee, 38 Cal.3d at p. 57.) Regardless, the court clearly and explicitly found that “[a]n 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.” (Ibid.)

This finding was not simply a general observation; it was necessary to the court’s determination that Lintz could not be held liable for malpractice and that the summary judgment should be affirmed. It therefore constitutes a decision of the California Supreme Court, and not merely dicta. (Fireman’s Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1301 [“[G]eneral observations unnecessary to the decision … are dicta, with no force as precedent.”].)

The decisions of the California Supreme Court must be followed by all of the state courts of California. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454; Sumner Hill Homeowner’s Association v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1021; Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510.) Plaintiff does not provide authority from the Supreme Court which contradicts the ruling in Steketee. The only Supreme Court cases cited by plaintiff on this issue did not involve legal malpractice claims or statutes of limitations. The Court declines to follow the analysis in Cline, an appellate court case determined before Steketee, which did not involve a legal malpractice claim for failure to file an action within a statue of limitations. The other appellate court cases cited by plaintiff, which primarily pertained to personal injury actions and not actions for legal malpractice, are likewise inapplicable. The sister state authority cited by plaintiff is not binding on this Court.

There is no dispute between the parties that the statute of limitations for a Marvin action ran on April 24, 2011. (See Opp., p. 6; Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1124.) Plaintiff also admits that Stolar was substituted out of the dissolution action on November 8, 2010, over five months before the statute of limitations ran. (See Moua Decl., ¶ 36.)

However, Steketee does not bar plaintiff’s claims in this action because plaintiff is not merely arguing that Stolar failed to file the Marvin action within the applicable statue of limitations; instead, plaintiff presents evidence that Stolar’s negligent advice affirmatively caused her to refrain from seeking a Marvin action until after the dissolution action ended. (See PMF 16.) The dissolution action was not dismissed until December 2011, after the statute of limitations had run. (See DMF 46.) Therefore, plaintiff has sufficiently established a triable issue of material fact as to whether Stolar’s conduct caused her to wait until after the statute of limitations had run before pursuing a Marvin action.

2. Allegations regarding the lis pendens

It is undisputed that plaintiff recorded lis pendens in the dissolution action before Stolar was retained, and that they were released during Stolar’s representation of plaintiff. (See DMF 17, 18, 23A.)

Stolar argues that the release of these notices could not have damaged plaintiff because the Court subsequently found that plaintiff was not a putative spouse and therefore she did not have the right to record the lis pendens in the first place. While true, this fact doesn’t help Stolar because plaintiff’s damages are not limited to the ultimate viability of the lis pendens. Plaintiff presents evidence suggesting that the release of the notices undermined her efforts to obtain a settlement in the dissolution action. Plaintiff wanted the lis pendens to remain until the dissolution action was resolved and at no point authorized Stolar to execute the notices of withdrawal. (See PAMF 24, 25.) Despite this, Finston executed the notices of withdrawal and delivered them to Ng’s attorney with directions that he record them, despite the fact that no settlement agreement had been fully executed. (See PAMF 32-35, 39.) Ng’s attorney then recorded most of the notices. (See PAMF 41-42, 51-53.) Stolar did not inform plaintiff that it had provided the notices to Ng’s attorney. (PAMF 40.) Plaintiff presents evidence that Ng thereafter refused to sign a previously negotiated $750,000.00 settlement. (See PAMF 43-45, 60, 61, 74.) Finston made no attempt to re-record the lis pendens. (PAMF 62.) This evidence is sufficient to raise a triable issue of fact as to whether Stolar’s execution and delivery of the notices to withdraw the lis pendens caused plaintiff damages.

3. Negotiation of settlement agreements

Stolar asserts that plaintiff rejected multiple settlement offers by Ng. (DMF 12, 29-38, 39B-39F, 40A-40C, 40F-40H, 42.) However, these assertions are purportedly supported by exhibits that have not been authenticated. For the reasons stated above, the Court rejects these assertions.

The remainder of the evidence provided by Stolar on this issue is not sufficient to meet its burden of establishing that there are no triable issues of material fact. Therefore, the burden is not shifted to plaintiff to establish a triable issue of fact as to whether Stolar’s conduct regarding settlement efforts caused her damages. “A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant’s showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counteraffidavits at all.” (Cox v. State (1970) 3 Cal.App.3d 301, 309) “Only if the moving party first demonstrates that its declarations, ‘ … considered in light of the issues raised by the pleadings … would, standing alone[,] support the summary judgment motion [,] does the court look to any counteraffidavits and counterdeclarations.’” [Citation] (Conn v. National Can Corp. (1991) 124 Cal.App.3rd 630, 639.)

4. Improper withdrawal of representation

There appears to be no dispute that it was plaintiff who discharged Stolar. (See Moua Decl., ¶ 36.) Plaintiff does not address this issue in her Opposition. Therefore, there are no triable issues of material fact as to plaintiff’s claim that Stolar “improvidently” withdrew from the dissolution action. (See 4AC ¶ 57u.) However, this does not completely dispose of plaintiff’s second cause of action. Summary adjudication may only be granted where it “completely disposes” of a cause of action. (Code Civ. Proc., § 437c(f)(1).)

Stolar’s request for summary adjudication is DENIED.

Moving Party: Defendants Howard D. Pilch, Law Offices of Howard D. Pilch (“Pilch”)

Resp. Party: Plaintiff Lilas Moua (“plaintiff”)

Pilch’s motion for summary judgment / adjudication is DENIED.

Plaintiff’s Objectons to Defense Exhibits:

Objection
1 OVERRULED
2 OVERRULED
3 SUSTAINED
4 OVERRULED
5 OVERRULED
6 OVERRULED
7 SUSTAINED
8 SUSTAINED
9 SUSTAINED
10 SUSTAINED

The Court sustains plaintiff’s objections to defense exhibits 8, 10, 15, and 16 (hearsay). The Court overrules the remainder of the objections because the documents are not being presented for the truth of the matters asserted. Statements are not hearsay when offered “to show only that the statement was made or to show a certain effect on the hearer or reader.” (Wegner, et al., Cal. Prac. Guide Civ. Trials & Ev. (The Rutter Group 2013) ¶ 8:1038 [italics in original].)

The Court sustains Pilch’s objections to the following portions of the Moua declaration: paragraphs 17 (hearsay), 25 (hearsay), and 37 (improper legal conclusion). The Court overrules the remainder of Pilch’s objections to plaintiff’s evidence.

BACKGROUND:

Plaintiff commenced this action on October 7, 2011, against defendants alleging six causes of action: (1) attorney malpractice; (2) attorney malpractice; (3) attorney malpractice; (4) attorney malpractice; (5) breach of trust; and (6) negligence. Plaintiff filed a second amended complaint on June 22, 2012, after the Court granted defendants’ motion to strike. Plaintiff’s second amended complaint added two causes of action for breach of fiduciary duty and fraud; however, the Court had not granted plaintiff leave to amend to add causes of action. After obtaining leave to amend, plaintiff filed a third amended complaint alleging the same causes of action alleged in the second amended complaint.

After the Court sustained defendants’ demurrer to the third amended complaint, plaintiff filed a fourth amended complaint (“4AC”) on October 15, 2012. The 4AC included causes of action for: (1) attorney malpractice; (2) attorney malpractice; (3) attorney malpractice; (4) breach of trust; (5) breach of fiduciary duty; (6) fraud; and (7) negligence. The fourth through seventh causes of action are alleged against Pilch.

The underlying action was a family law case involving a controversy over property acquired during a cohabitation period between Plaintiff and Alex Ng, who was either plaintiff’s husband, putative spouse or partner. (4AC ¶ 24.) Pilch was not plaintiff’s attorney in the underlying action; rather, Pilch represented Alex Ng. (See id., ¶ 45.) Plaintiff claims that Pilch improperly caused six Notices of Withdrawal of pendency of action to be filed in connection with an underlying marital dissolution action. (See id., ¶¶ 66-74.) Plaintiff alleges that her attorney in the underlying action intended Pilch to record the Notices of Withdrawal only after the underlying parties executed and signed a stipulated judgment. (Ibid.) Plaintiff claims that Pilch had a duty to safeguard the Notices and breached this duty by causing the Notices to be recorded with the County Recorder, notwithstanding the absence of a stipulated judgment. (Id., ¶¶ 79-80.)

On 8/20/13, the Court granted a motion for summary judgment by the Pittullo defendants.

On 11/12/13, the Court denied a motion for summary judgment by the Hagan defendants.

ANALYSIS:
Pilch moves for summary judgment, or in the alternative summary adjudication, of the 4th – 7th causes of action. Pilch argues that: 1) he is prejudiced because he is unable to present evidence as to his privileged communications with Ng; 2) that Pilch’s recording of the Notices of Withdrawal did not cause plaintiff any harm; and 3) that plaintiff cannot recover emotional distress damages because she unequivocally testified at deposition that she has not suffered any emotional damage as a result of any wrongdoing on the part of Pilch.

Prejudice Due to Attorney-Client Privilege

Pilch first argues that the action against him should be dismissed because his defense depends on confidential client communications that cannot be disclosed. Where a defendant in a legal malpractice action is “effectively foreclosed from mounting any meaningful defense” because the nature of the action forecloses the defendant from disclosing communications that are key to the action, a dismissal is warranted. (McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378, 380-385. See also Solin v. O’Melveny & Myers LLP (2001) 89 Cal.App.4th 451, 463-466.) This issue can be raised at the time of a motion for summary judgment. (See General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190 [“whether the privilege serves as a bar to the plaintiff’s recovery will be litigated and determined . . . at the time of a motion for summary judgment”].)

There are at least four factors that must be considered in determining whether to dismiss an action because the defendant-attorney’s “due process right to present a defense would be violated by the defendant’s inability to disclose a client’s confidential information if the action were allowed to proceed.” (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 92.) These include: (1) whether the evidence at issue is the client’s confidential information and whether the client is insisting that the information remain confidential; (2) whether the confidential information is highly material to the defendant’s defense; (3) whether the Court is able to use “ad hoc measures from [its] equitable arsenal” to permit the action to proceed; and (4) whether it would be “fundamentally unfair” to allow the action to proceed. (Id. at pp. 792-793.)

It is undisputed that Pilch represented Ng in the underlying action and that Ng has not waived the privilege as to confidential information. (DMF 4-5; see Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102, 105.)

The next issue is whether the information is highly material to the defense. As stated in Dietz:

“[T]he McDermott and Solin courts relied heavily on the fact that the confidential information at issue in those cases was highly material to the defendants’ defenses. In McDermott, the court held that dismissal was proper in a case in which the plaintiff brought a claim that, by its very nature, necessitated that the defendant disclose privileged or confidential information in order to present “meaningful defense” (McDermott, supra, 83 Cal.App.4th at p. 381, 99 Cal.Rptr.2d 622; see also id. at p. 383, 99 Cal.Rptr.2d 622 [noting that “attorney-client privilege issues [are] necessarily raised by a derivative malpractice action against corporate outside counsel,” italics added].) In Solin, the court noted that the confidential information pertained to the “central disputed issues in the case” and that excluding it would result in restricting the defendant’s cross-examination of its accuser on a “critical issue.” (Solin, supra, 89 Cal.App.4th at pp. 463, 466, 107 Cal.Rptr.2d 456.)”

(Dietz, 177 Cal.App.4th at pp. 792-793.) The court in Dietz found that the confidential information was not highly material to the defense because the purpose for which the evidence was offered was “far from the central issue in the case.” (Id. at p. 796.)

Pilch fails to establish that the confidential information is highly material to the defense. Plaintiff’s claim against Pilch is based on allegations that plaintiff’s attorney Finston and Pilch agreed that Finston would prepare notices of withdrawal and deliver them to Pilch, and that Pilch would hold them in trust until stipulated judgments were executed and accepted by the court. (See 4AC ¶ 66.) Plaintiff alleges that Pilch recorded the notices of withdrawal prior to the execution and court approval of the stipulated judgment. (Id., ¶¶ 68-73.) Pilch argues that there was an agreement between Ng and plaintiff in which Ng agreed to pay plaintiff’s outstanding legal fees in exchange for plaintiff’s consent to record the notices of withdrawal. (See DMF 7-11.) Pilch argues that plaintiff’s allegations hinge on a purported oral agreement between Finston and Pilch that the notices were to be recorded only once the parties executed a stipulated judgment. (DMF 14.) Pilch then argues that, if the case were to proceed, he would be forced to refute Finston’s testimony, which would require disclosing communications with Ng as to the parties’ agreement.

The Court rejects this argument. The conversation between Pilch and Finston is not confidential since they were opposing counsel in the underlying action. Likewise, any conversation or negotiation between plaintiff and Ng is not confidential. Moreover, to the extent that Pilch is concerned about testifying as to what Ng told him about an agreement with plaintiff, such testimony would in any event be inadmissible hearsay. The Court rejects Pilch’s argument that he is the only person who can testify as to the terms of such agreement – presumably Ng could testify since he, unlike Pilch, has personal knowledge of the agreement. There is no showing that any confidential communication between Ng and Pilch is relevant to the issue of whether Finston and Pilch entered into an agreement to hold the notices in trust until the stipulated judgment was executed and entered. Plaintiff’s claims are not based on communications between Pilch and Ng; rather, they are based on communications between Finston and Pilch. Such communications are not confidential.

Pilch’s request to dismiss this action is DENIED.

Causation

Pilch next argues that plaintiff’s claims fail because the undisputed facts show that Pilch did not cause plaintiff’s harm because plaintiff was never entitled to the properties subject to the lis pendens and because plaintiff did not lose any leverage in the settlement as a result of recording the notices of withdrawals.

In the opposition, plaintiff cites, at length, to Wasmann v. Seidenberg (1988) 202 Cal.App.3d 752. The court in Wasmann dealt with the issue of whether an attorney had a duty to safeguard property during settlement negotiations with an adverse party. (See id. at pp. 754-757.) Here, Pilch is not arguing that he owed no duty to plaintiff. Pilch’s only argument is that any conduct on his part did not cause plaintiff’s damages. The court in Wasmann did not address the causation issue. Therefore, Wasmann is inapplicable to the causation issue.

Plaintiff argues that the recording of the notices caused her damages because, but for Pilch’s actions, she could have settled the case on more favorable terms than the judgment that was entered. “To show damages proximately caused by the breach, the plaintiff must allege facts establishing that, ‘but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result.’ [Citation.]” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.) Plaintiff cites to Charnay, a legal malpractice action, in her opposition. In Charnay, the court found that the plaintiff had sufficiently alleged causation by alleging that “she was prepared to resolve the action and that, but for the advice of counsel . . . [the underlying action] would have been resolved for $25,000.00 less.” (Id. at p. 180.) The amount of the possible settlement was immaterial because the plaintiff “need only allege that, but for [the attorney’s] malpractice, she could have obtained a ‘more favorable result’ than the . . . judgment ultimately rendered against her.” (Ibid.) The Court notes that plaintiff has not alleged a legal malpractice action against Pilch.

Pilch presents evidence that, prior to the recording of the notices, Ng had made a settlement offer of $750,000.00. This offer was pending in July 2010. (See DMF 28.) The notices were recorded in August and late October 2010. (DMF 17-21.) Ng withdrew his settlement offer in November 2010. (DMF 22.) The underlying action was eventually dismissed and plaintiff recovered nothing. (DMF 24, 25.)

Plaintiff presents evidence that in July 2010 Finston made handwritten revisions to the stipulated judgment consistent with an agreement negotiated between the parties (See PMF 29.) Finston faxed this revised stipulated judgment to Pilch. (PMF 30, 33.) The revised stipulation included a provision that the notices were to be held until payment of the settlement. (PMF 31, 35.) Pilch then revised the stipulated judgment to delete the condition that Ng had to make full payment before recording the notices, and the revised stipulation provided that the notices would be recorded upon execution of the stipulated judgment. (PMF 48, 49.) Finston agreed to these proposed changes in August 2010. (PMF 53, 54.) A final stipulated judgment was sent to Finston on September 21, 2010. (PMF 64.) This stipulated judgment again provided that Ng was free to record the notices “forthwith.” (PMF 66, 67.) On September 22, 2010, plaintiff signed a settlement agreement in which Ng agreed to pay plaintiff $750,000.00, and Finston forwarded Pilch a signature page with his and plaintiff’s signature. (PMF 70, 71.) In November 2010, plaintiff learned through Ng that the notices had been prepared and recorded. (PMF 74.) On November 5, 2010, after the notices had been recorded, Ng refused to sign the stipulated judgment of $750,000.00. (PMF 75, 76.)

Plaintiff’s evidence is sufficient to raise a triable issue of fact as to whether the recording of the notices of withdrawal hindered her ability to settle the action. The evidence suggests that Ng withdrew his proposed settlement shortly after the final notice was recorded. (See DMF 17-22.) Plaintiff executed a stipulated judgment while Pilch was attempting to record the notices, but Ng appears not to have executed this judgment and instead withdrew the stipulation shortly after Pilch was given documents necessary to record the final notice. (See DMF 17-22 [Pilch received the documents on October 22, 2010; Ng withdrew the offer on November 5, 2010].)

Pilch’s request for summary judgment on the ground that he did not cause plaintiff’s injuries is DENIED.

Emotional Distress

Pilch requests that plaintiff’s claim for emotional distress be dismissed because plaintiff testified at her deposition that she did not suffer emotional distress.

Plaintiff is correct that this request is not procedurally proper. Dismissing the request for emotional distress damages will not completely dispose of a cause of action. Pilch is not requesting dismissal of a claim for punitive damages. A party may move for summary adjudication as to a cause of action if the party contends that the cause of action has no merit, or a claim for damages if the party contents that there is no merit to a claim for punitive damages. (See Code Civ. Proc., § 437c(f)(1).)

The Code of Civil Procedure does provide a method for summary adjudication of issues that do not completely dispose of a cause of action, defense, or duty issue, provided that certain statutory requirements are met. (See Code Civ. Proc., § 437c(s).) “[I]f statutorily-specified conditions are met, the court may summarily adjudicate a legal issue or a claim for damages (other than punitive damages) that does not completely dispose of a cause of action, an affirmative defense or an issue of duty . . . .” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 10:36 [citing Code Civ. Proc., § 437c(s)].) Such a motion may be brought only where the parties so stipulate – and file and serve a proper stipulation – and the Court makes a prior determination and order that the motion will further the interests of judicial economy. (Code Civ. Proc., § 437c(s)(2), (3), (6).) There does not appear to be such a stipulation or order in the record for this action. The notice of such a motion must expressly state that it is being made pursuant to section 437c(s), must repeat the stipulation, and must be signed by all parties. (Code Civ. Proc., § 437c(s)(4), (5).) The notice of Pilch’s motion does not comply with these provisions. Therefore, this is not a proper motion under section 437c(s).

Pilch’s request to dismiss plaintiff’s claim for emotional distress damages is DENIED.