Case Name:   220 Fitness Concepts, LLC v. Allison K. Young

 

Case No.:       1-13-CV-241766

 

I.  Motion by defendant Allison K. Young  for Summary Judgment, or [sic] in the Alternative, Summary Adjudication on the Complaint of 220 Fitness Concepts, LLC 

 

Plaintiff’s evidentiary objections do not comply with Rule of Court 3.1354(b)(3) and accordingly the court declines to rule.

 

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.  A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense.  Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’  ‘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.’”  (Madden v. Summit View, Inc. (2008) 165 Cal.App.4^th 1267, 1272 [internal citations omitted].)

 

Defendant’s motion in the alternative requests rulings on seven “issues”, apparently pursuant to Code of Civil Procedure 437c(s).  However, the court has not been able to locate a stipulation or an order allowing such a motion.  Therefore, the court will treat the motion in the alternative as one made pursuant to Code of Civil Procedure section 437c(f)(1) with respect to the stated causes of action.

 

1. Attorney Client Relationship

 

With respect to the first, second, third, fourth and fifth causes of action, Defendant argues that Plaintiff has no evidence to show that the parties entered into an attorney-client relationship to support these claims.  However, the second, fourth, and fifth causes of action are not entirely dependent on whether the parties entered into an attorney-client relationship.  (See Complaint at ¶¶ 131 and 142-168.)  Thus, whether or not an attorney-client relationship exists is material only to the first and third causes of action for professional negligence and breach of fiduciary duty.

 

An attorney-client relationship is not created by the unilateral declaration of one party to the relationship.  (See Fox v. Pollack (1986) 181 Cal.App.3d 954, 959 [individuals cannot unilaterally create an attorney-client relationship without the agreement of the attorney].)  Rather, the relationship can only be created by contract, express or implied.  (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4^th 719, 729.)  “An implied contract is one, the existence and terms of which are manifested by conduct.”  (Civ. Code § 1621.)  “The distinction between express and implied in fact contracts relates only to the manifestation of assent; both types are based upon the expressed or apparent intention of the parties.”  (Responsible Citizens v. Sup. Ct. (1993) 16 Cal.App.4^th 1717, 1733.)  As to implied contracts, “[i]t is the intent and conduct of the parties which is critical to the formation of the attorney-client relationship.”  (Hecht v. Sup. Ct. (1987) 192 Cal.App.3d 560, 565.)

 

A party’s subjective belief that an attorney-client relationship exists is insufficient to create such a relationship; therefore, hindsight beliefs that the relationship existed are legally irrelevant.  (Zenith Ins. Co. v. O’Connor (2007) 148 Cal.App.4^th 998, 1010.)  Instead, evidentiary facts must support the assertion.  (Fox v. Pollack, supra, 181 Cal.App.3d at p. 959.)

 

“The question of whether an attorney-client relationship exists is one of law.  However, when the evidence is conflicting, the factual basis for the determination must be determined before the legal question is addressed.”  (Responsible Citizens, supra, 16 Cal.App.4^th at p. 1733.)

 

Here, the undisputed facts show that there was no written agreement between Plaintiff and Defendant creating an attorney-client relationship.  (See Complaint at ¶ 4.)  Defendant offers her own declaration under penalty of perjury stating that she never had an attorney-client relationship with the Plaintiff.  (See Declaration of Allison Young at ¶ 23.)  Defendant also states that Plaintiff had obtained other lawyers to address its trademark registration issues.  (Id. at ¶ 9; Exhibit A.)   Finally, Defendant attaches Plaintiff’s discovery responses where it fails to produce any documents identifying Defendant as Plaintiff’s attorney.  (See Declaration of Daniel Price at Exhibit E.)  Having met her initial burden, the burden shifts to Plaintiff to raise a triable issue of fact.

 

In opposition, Plaintiff offers an email from May 25, 2010 from Defendant addressed to the company discussing potential trademark liability issues.  (See Declaration of Matthew Baker at Exhibit 13.)  For example, within that email, Defendant explained that Plaintiff may face litigation costs, infringement penalties, and destruction of its merchandise.  (Ibid.)  Plaintiff also attaches an earlier email from February 23, 2010 from the Defendant where she advised the company on strategies regarding the trademark and branding.  (Id. at Exhibit 9.)  Under these circumstances, a conclusion could reasonably be drawn that an agreement was reached between the parties by implication to create an attorney-client relationship.  (See Davis v. State Bar (1983) 33 Cal.3d 231, 237 [no formal arrangements are necessary to establish an attorney-client relationship especially where, as here, the existence of the relationship is demonstrated and reinforced by the attorney’s own conduct].)  Thus, a triable issue of fact exists as to whether there was an attorney-client relationship between the parties.

 

2. Duty

 

Defendant argues that she is entitled to summary judgment with respect to each cause of action because she did not owe a duty to Plaintiff.  However, with respect to the fraud causes of action, duty is not an element to be proved in such claims.  (See Home Budget Loans v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277, 1285, fn. 3 [duty is not an element of fraud].)  As to the remaining claims, Defendant’s separate statement reiterates the same material facts and evidence used in support of her attorney-client relationship argument which has been rejected on summary judgment.

 

3. Breach of Duty

 

Defendant argues that even if there were an attorney client relationship between the parties, she never breached any duty, fiduciary or otherwise, to Plaintiff.  Although breach of duty is generally a question of fact, it may be determined as a question of law if the court could draw only one conclusion from the evidence.  (See Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4^th 1352, 1366.)

 

Relying on Plaintiff’s discovery responses (RPD Nos. 3 and 13), Defendant argues that there is no evidence to demonstrate that she prepared or filed a trademark application for Plaintiff.  (See Declaration of Daniel Price at Exhibits B and C; Defendant’s Separate Statement of Undisputed Facts under Issue No. 3.)  However, Defendant fails to attach Plaintiff’s RPD Nos. 3 and 13 identified in the separate statement to the motion for summary judgment.  Thus, Defendant fails to meet her initial burden on the breach of duty issue.

 

4. Causation

 

Defendant argues that, should the court find that there was a breach of duty, any such breach was not the proximate cause of Plaintiff’s injuries.  As a preliminary matter, even though this issue is identified in the Notice of Motion, the memorandum of points and authorities fails to address causation with any arguments or legal authority.  (See Cal. Rules of Court, rule 3.1113; Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4^th 927, 931 [memorandum of points and authorities must be supported by arguments and evidence along with a discussion of statutes and cases in support of the position advanced].)  Furthermore, Defendant’s material facts and evidence in the separate statement do not adequately the issue of causation.

 

5. Statute of Limitations

 

Defendant argues that even if there were evidence to support Plaintiff’s claims, each cause of action would be barred by the one-year statute of limitations applicable to attorney-malpractice claims.  (See Code Civ. Proc. § 340.6.)  “Statute of limitations is the collective term applied to acts or parts of acts that prescribe the periods beyond which a plaintiff may not bring a cause of action.”  (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4^th 499, 509.)  “A plaintiff must bring a claim within the limitations period after accrual of the cause of action.  In other words, statutes of limitation do not begin to run until a cause of action accrues.  Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements.”  (Id. at pp. 509-510 [internal citations and quotation marks omitted].)

 

Section 340.6 provides, subject to very limited exceptions, that:

 

“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.”

 

The one-year limitations period does not begin to run until the plaintiff has sustained actual injury.  (Civ. Proc. Code § 340.6, subd. (a)(1).)  In the legal malpractice context, “actual injury occurs when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based on the asserted errors or omissions.”  (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4^th 739, 743.)

 

Defendant offers a portion of her declaration stating that she sent the April 7, 2011 Proposal Letter to Plaintiff.  (See Declaration of Allison Young at ¶ 17.)  However, this statement standing alone does not explain how Plaintiff’s claims would be barred by the statute of limitations.  Furthermore, to the extent that Plaintiff’s claims are based on fraud, they would not be subject to the one-year limitations period in Code of Civil Procedure section 340.6.  Thus, Defendant has not met her initial burden with respect to this issue.

 

6. Defendants did not make any Misrepresentations

 

With respect to the fourth and fifth causes of action for negligent misrepresentation and fraud, Defendant argues that she did not make any misrepresentations.  However, Defendant’s separate statement fails to address this issue with any material facts or evidence and thus she fails to meet her initial burden.

 

7. Defendant did not Knowingly make Misrepresentations

 

Finally, with respect to the fifth cause of action, Defendant claims that she did not knowingly make any false representations to Plaintiff.  Defendant offers an excerpt from the declaration of Michelle Correll, the attorney for Holly Hodson in lawsuits filed against her by the Plaintiff in this action.  (See Declaration of Michelle Correll at ¶ 8.)  Nothing about paragraph 8 in the declaration addresses whether or Defendant made any false representations in this action.  (See also Plaintiff’s Objection to Evidence at No. 4.)  Therefore, Defendant fails to meet her initial burden with respect to this issue.

 

Therefore, Defendant’s motions are DENIED.

 

II.  Motion by Plaintiff for Summary Adjudication     

 

Plaintiff’s request for judicial notice is GRANTED.  (See Evid. Code §§ 451, 452.)

 

Defendant’s evidentiary objections do not comply with Rule of Court 3.1354(b)(3) and accordingly the court declines to rule.

 

Plaintiff moves for summary adjudication on grounds that Defendant owed it duties of loyalty and confidentiality.  Plaintiff also seeks summary adjudication that Defendant’s conduct on April 7, 2011 violated these duties.  However, this latter issue is not proper for summary adjudication as it fails to address a cause of action, affirmative defense, claim for damages, or issue of duty.  (Code Civ. Proc. § 437c, subd. (f)(1); see Paramount Petroleum Corp. v. Sup. Ct. (2014) 227 Cal.App.4^th 226, 244 [no statutory basis for an order summarily adjudicating that a party breached a duty]. )  Thus, the court will address the motion only with respect to the duty issues.

 

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.  The statute thus authorizes motions for summary adjudication that reduce the costs and length of litigation by limiting the substantive areas of dispute.”  (Serri v. Santa Clara University (2014) 226 Cal.App.4^th 830, 859 [internal quotation marks and citations omitted].)

 

Here, whether or not Defendant owed a duty of loyalty and confidentiality to Plaintiff depends on the existence of an attorney-client relationship between the parties.  As stated above, factual issues remain with respect to whether the parties entered into an attorney-client relationship.  (See Declaration of Matthew Baker at Exhibits 9 and 13; Declaration of Allison Young at ¶ 26.)  Thus, the issue of whether such a relationship exists is cannot be resolved as a matter of law on a motion for summary adjudication.  (See Responsible Citizens v. Sup. Ct., supra, 16 Cal.App.4^th at p. 1733 [question of whether an attorney-client relationship exists is one of law when there is no conflicting evidence].)

 

Therefore, Plaintiff’s motion for summary adjudication is DENIED.