2011-00096986-CU-PN

Maria G. DeMello vs. Guthrie & McCaleb

Nature of Proceeding:    Motion for Summary Judgment

Filed By:  Taylor, Wendy A.

Defendants Guthrie & McCaleb and Jerry L. Guthrie’s Motion for Summary Judgment
is denied.

Defendants’ Requests for Judicial Notice are granted.

Defendants’ Objections to Evidence: Sustained as to No. 3, 9, 25, 27,
Overruled as to Nos. 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
22, 23, 24, 26, and 28.

Plaintiff has not filed separate evidentiary objections as required by 3.1354 [“Unless
otherwise excused by the court on a showing of good cause, all written objections to
evidence in support of or in opposition to a motion for summary judgment or summary
adjudication must be served and filed at the same time as the objecting party’s
opposition or reply papers are served and filed.”] .  The objection to evidence
(Declaration of Robie) is therefore overruled. Even if it were inadmissible, the result
would not change.

Defendants represented Maria G. DeMello (“Maria”) in defending a petition in probate.
Maria was a long time friend of Betty Bell Smith (“Betty”)  When Betty died, Maria was
the beneficiary to certain securities and was to receive distributions under the Betty
Bell Smith Trust.  Over the years, Betty had amended her trust documents in a manner
that was more favorable to Maria but less favorable to Betty’s son, Gerald A. Smith
(“Gerald”).  Betty died in July of 2009.  On September 2, 2009 Gerald’s attorney told Guthrie
attorney Elizabeth Harrison that Gerald would oppose the appointment of Maria as the
successor trustee of the trust.  On September 9, 2009 defendants filed in the probate
case a Declaration signed by Maria.  Maria states that she was told to sign the
declaration in a rush outside the courtroom without having read it.  In the Declaration,
Maria declared she “handled [Betty’s] financial affairs, wrote her bills for her, did her
shopping, and generally cared for her.  After her husband Floyd J. Smith died, I
essentially helped take care of most things for her.” (UMF 10)  Guthrie states that he
based the content of the Declaration on information Maria had relayed to Mr. Guthrie.
(Declaration of Guthrie, UMF11)  However, Maria has presented evidence in which
Guthrie later told her that it was his mistake as to the “incorrect” declaration he asked
her to sign. (Plaintiff’s Ex. 25) On September 14, 2014 Maria wrote Guthrie a letter
stating the inaccuracies in the Declaration.  (UMF 13) Guthrie prepared an Amended
Declaration signed November 10, 2009 clarifying DeMello’s relationship with Betty,
stating that she was a close friend but not a caregiver.  However, the Amended
Declaration was not filed by Guthrie.  (UMF 14, 15)   When mediation did not result in
settlement, DeMello terminated Guthrie’s services and hired current counsel.  (UMF
16) The Amended Declaration was included in the file materials current counsel
retrieved from Guthrie’s office.  The Amended Declaration was not filed until November
24, 2010.

On September 20, 2010 Gerald filed a Petition to Determine Invalidity of Trust
Amendments and other challenges including a petition for order determining that
DeMello was a disqualified person under Probate Code section 21350.  Under that
Probate Code section, a caregiver of a dependant adult is disqualified from a donative
transfer absent exceptions stated under section 21351, which were not met in this
case.  Betty’s grand-daughter Lisa Woods also filed a petition seeking to invalidate the
transfer of securities to Maria, contending those securities belonged in the Trust.

Maria brings claims for legal malpractice against Guthrie, contending that the
Declaration was negligently drafted and led to accusations that Mello was Betty’s
“caregiver,” “fiduciary,” and “caretaker” and therefore disqualified under Probate Code
21350 from receiving a donative transfer from Betty.  The Declaration is also alleged to
have caused Betty’s grand-daughter to file an action to recover annuities that had been
transferred to Maria.  Maria contends that the Declaration substantially assisted Gerald
and Lisa in their position that Maria was a caregiver, and undermined her credibility
when she attempted to dispute her caregiver status.  Maria contends that the
Amended Declaration might have lessened her damages if it was filed immediately,
but the failure to do so made it more difficult to challenge the caregiver status
allegations.  Maria alleges that she has incurred the expense of attorneys fees in
defending the claims in probate which resulted in a settlement in which she gave up a
substantial amount of what she would have received under the Trust.  Absent the
Declaration, she contends she could have obtained a better result.

Defendants seek summary judgment on the ground that the conduct of defendants did
not cause plaintiff any damages.  For purposes of this motion, the defendants are not
addressing the issue of whether their conduct fell below the standard of care.

The essential elements of a cause of action for attorney malpractice are: (1) the duty to
use such skill, prudence and diligence as other attorneys commonly possess and
exercise; (2) a breach  of that duty; (3) a proximate causal connection between the
negligent conduct and the resulting injury; and (4) actual loss or damage resulting from
the attorney’s negligence. Budd v. Nixen  (1971) 6 Cal.3d 195, 200; Pierce v. Lyman
(1991) 1 Cal.App.4th 1093, 1102.

Defendants contend that plaintiff must produce evidence that “but for” the filing of the
Declaration, neither Gerald nor Lisa would have challenged Maria’s right to inherit. Not
so. In fact,  Maria’s burden, assuming defendants submitted evidence to shift the
burden, is to show that absent the Declaration, Maria would have received a better
result. Barnard v Langer (2003) 109 Cal.App.4th 1453, 1461.

Defendants present the following evidence in an attempt to negate causation.:
Maria was appointed as Betty’s attorney in fact in 2006 if Betty were to become
incompetent. (UMF 7); Gerald planned on challenging Maria as trustee before the
Declaration was drafted based on his belief that she was a caregiver (UMF 12);
Maria’s new counsel could have filed the Amended Declaration before the September
2010 petition in probate (see UMF 17); Gerald’s Petition’s 1st cause of action for
Undue Influence, 2nd cause of action for Elder Abuse,  and Prayer did not mention the
Declaration as a basis for the causes of action or Prayer;  Gerald’s attorney would
have filed the Petition even in the absence of the Declaration; Lisa Woods did not
challenge Maria’s right to the securities based on anything in the Declaration (UMF
30).

In opposition, Maria has pointed to evidence from which a trier of fact could infer that
she incurred more attorneys fees in defending the action, and received a worse result
in settlement due to the factually inaccurate Declaration made Gerald’s and Lisa’s
cases stronger.   The Declaration constituted Maria’s admission to being a caregiver
and strengthened Gerald’s and Lisa’s claims against Maria.  The fact that some of the
causes of action in Gerald’s Petition did not contain allegations mentioning the
Declaration does not establish that the Declaration did not provide evidentiary support
for those causes of action.   Pleading rules do not require the recitation of supporting
evidence to state a cause of action.  The Third cause of action specifically referred to
the Declaration as a basis for making Maria ineligible for a donative transfer under
Probate Code section 21350.

The motion is denied both on the ground that the evidence supporting the motion does
not effectively negate causation.  The motion is denied on the additional ground there
are material issues of fact with regard to whether the Declaration filed on September 9,
2009 was a proximate cause of injury to Maria.  (See disputes as to UMF 7 (date
power of attorney was effective) UMF 11(whether the Declaration was based on facts
Maria told Guthrie),  and UMF 15 (reason why Amended Declaration was not filed right
away).

Plaintiff to prepare a formal order complying with C.C.P. §437c(g) and C.R.C. Rule
3.1312.